LAW OF EVIDENCE

ADMISSIBILITY OF CUSTODIAL
CONFESSIONS

SUBMITTED TO: SUBMITTED BY:

DR. PURUSHOTAM RITESH TEWARI

B.COM. LL.B.

SEMESTER- VII

SECTION- E
 ACKNOWLEDGEMENT

In the accomplishment of this project successfully, many people have bestowed upon me their
blessings and the heart pledged support. I thank to all those people who have helped me in this
project.

I would like to take this opportunity to express my gratitude to DR. PURUSHOTAM who
gave me the opportunity to do this wonderful project for the subject of LAW OF EVIDENCE
on the subject “ADMISSIBILITY OF CUSTODIAL CONFESSIONS”. The project helped
me learn how to do proper Research and I learned about many new things while doing the
project.

I would also like to thank my parents and friends who helped me complete this project within
the deadline. I will always be indebted to them.

RITESH TEWARI
 TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................................ 4

EVIDENTIARY VALUE OF CONFESSION .............................................................................................5

ADMISSIBILITY OF CONFESSION ........................................................................................................ 6

CONFESSION IN POLICE CUSTODY ...................................................................................................... 7

CONCLUSION ........................................................................................................................................... 10

BIBLIOGRAPHY ....................................................................................................................................... 11
 INTRODUCTION

A confession is a guilty testimony by a defendant that clearly shows the defendant's guilt. It is
the defendant's admission of guilt for the crime for which he was charged. The etymological
meaning of the word "confession" conveys the meaning of "completeness." Since this comes
from the Latin confiteri... (fateri, to speak with con, completeness), the confession must be
admitted in full and unconditional. his or her guilty defendant. For testimony to be considered a
confession, it must be concluded that the defendant is guilty. If a conviction can be based on
testimony alone and no additional evidence is required, the testimony of the defendant as to the
accused crime amounts to a confession. A confession is very probative physical evidence when
given voluntarily. Confession can take any form. A confession is judicial when the defendant
admits his or her guilt directly in court. An extrajudicial confession, on the other hand, is when
the accused admits their guilt outside of court. That person could be a police officer or other
individual. Court confessions are good evidence, but out of court confessions are weak and
tricky.

Confession may be oral or written. It is not necessary that confession must be communicated to
some other person. Statements made to oneself, if overheard by another, can serve as evidence.
Therefore, confession may take place even when one is talking to oneself.

After observing these points an interesting question arises whether incriminating statements
made during sleep are admissible in evidence. These statements are not admissible because of a
very natural reason for suspension of mental faculties during sleep.1

1
https://blog.ipleaders.in/ (last visited on 8th October,2022)
 EVIDENTIARY VALUE OF CONFESSIONS

A confession, if free and credible, is considered the best and most conclusive evidence, since it is
assumed that "no one will make a false statement incriminating him". A conviction can be based
solely on a confession if the court is satisfied that the confession is free and credible. Court
satisfaction must be high. Confession does not necessarily have to be voluntary and true, so the
court must ensure that the defendant is willing to make a confession. In some cases, insanity, vanity,
escape from physical and moral torture, etc. may be the cause. It reduces its probative value.
Therefore, the court has a legal duty to determine whether the defendant's confession was voluntary.

In Sahoo v State of Uttar Pradesh, 19652, it was held that in case of confessions courts must
apply a double test;

 Whether the confession was perfectly voluntary.

 If so, whether it is true and trustworthy.

If a confessional statement satisfies both above mentioned conditions it may be relied upon.

Though, there is no rule of law which says that conviction can’t be based upon uncorroborated
confession however, as a matter of prudence it is usually considered safe to look at confession in
the light of all of the evidence on record. In Muthuswamy v State, 19513, the court observed
that confession shouldn’t be accepted merely because it contains a wealth of details. Unless the
main features of the story are shown to be true, it would not be safe, as a matter of prudence, to
base a conviction on confession by itself.

2
1966 AIR 40
3
AIR 1954 SC 4
 ADMISSIBILITY OF CONFESSION

Tolerance is based on law and strict rules, not logic. All admissible evidence is relevant, but not all
relevant evidence is admissible. Confession as evidence seems very relevant, as you cannot
understand why someone would make a statement against their own interests, but it is not
admissible in all cases.

There are several factors that can be used to determine the admissibility of a confession. These
include its voluntary and sincere nature, veracity, intent to confess, etc. But the most important
factor is "to whom the confession is made", which can greatly affect its admissibility. Confessions
to police officers are never admissible due to evidence regulations. But the same confession is
admissible before a competent judge.4

4
https://www.writinglaw.com/ (last visited on 8th October,2022)
 CONFESSION IN POLICE CUSTODY

Section 26 of Indian Evidence Act talks about Confessions in Police Custody. It says that ‘No
confession made by any person whilst he is in police custody unless it is made in the immediate
presence of a Magistrate, shall be proved as against such person’5.
Object- The object of section 26 of the Evidence Act is to prevent the abuse of their powers by
the police, and hence confessions made by accused persons while in custody of police cannot be
proved against them unless made in presence of a magistrate. The custody of a police officer
provides easy opportunity of coercion for extorting confession obtained from accused persons
through any undue influence being received in evidence against him.

Confession Of An Accused In Police Custody To Any One Else-

Section 26 provides that a confession which is made in custody of a police officer cannot be
proved against him. Unless it is made before a magistrate.

In Kishore Chand v. State of Himachal Pradesh6, the extra judicial confession was made to
Pradhan who was accompanied by Police (enquiry) Officer. The only interference which could
be drawn from the circumstance of the case, is that the confession was made at the time when the
accused was in the custody of police and it could not be proved against the accused. It could not
be believed that, when a police officer has seen the accused with deceased at last occasion, he
will not take the accused in the custody.

In the case it is evident that the Police Officer has created a scene and to avoid Section 25 and
26, the Police Officer has left the accused in the custody of village head man (pradhan).
The Police Officer in this case has no difficulty to take the accused to the Judicial Magistrate and
to take extra-judicial confession under section 164 of Cr.P.C which has got more probable value
and it gives an opportunity to make the required warning, that this confession will be used
against the accused and after this warning he records the confession. Under section 26, no
confession made by an accused to any person while in custody of a police officer shall be proved

5
https://indiankanoon.org/ (last visited on 8th October, 2022)
6
1990 AIR 2140
against him.

Police Custody
The word custody is used here in wide sense. A policeman may lay his hand on a person, hand-
cuff him or tie his waist with a rope and may take him with him. Again a police officer may not
even touch a person but may keep such a control over him that the person so controlled cannot
go any way he likes. His movement is in the control of the police officer. A police officer comes
to A and asks him to follow to the police station as he is wanted in connection with a dacoity
case. A follows him. He is in custody of the police officer.

Thus it is settled that “the custody of a police officer for the purpose of section 26, Evidence Act,
is no mere physical custody.” A person may be in custody of a police officer though the other
may not be physically in possession of the person of the accused making the confession. There
must be two things in order to constitute custody. Firstly, there must be some control imposed
upon the movement of the confessioner, he may not be at liberty to go any way he likes,
secondly, such control must be imposed by some police officer indirectly. The crucial test is
whether at the time when a person makes a confession he is a free man or hid movements are
controlled by the police by themselves or through some other agency employed by them for the
purpose of securing such confession. The word ‘custody’ in this the following section does not
mean formal cutody but includes such state of affairs in which the accused can be said to have
come into the hands of a police officer, or can be said to have been some sort of surveillance or
restriction.

In R. v. Lester7, the accused was being taken in a tanga by a police constable. In the absence of
constable, the accused confessed to the tanga-driver that he committed the crime. The confession
was held to be in police custody as the accused was in the custody of constable and it made no
difference of his temporary absence. Where a woman, charged with the murder of her husband,
was taken into the custody of the police, a friend of the woman also accompanied her. The
policeman left the woman with her friend and went away to procure a fresh horse. The woman
confessed her guilt to her friend while the policeman was away. The confession would not be

7
[2010] QCA 152
admissible against the accused as the prisoner should be regarded in custody of the police in spite
of the fact that he was absent for a short time. But where the accused is not arrested nor is he
under supervision and is merely invited to explain certain circumstances, it would be going
further that the section warrants to exclude the statement that he makes on the grounds that he is
deemed to be in police custody.

Where the accused had consumed poison and so she was removed to the hospital for treatment
and from the moment of her admission to the hospital till her discharge from there, the police
personnel were neither present in the room wherein the accused was kept for treatment or even in
the vicinity of the hospital nor they frequently visited the hospital, it could not be said that the
accused’s movements were restricted or she was kept in some sort of direct or indirect police
surveillance and she was in police custody for the purpose of section 26 of the Evidence Act.8

8
http://www.legalservicesindia.com/ (last visited on 8th October, 2022)
 CONCLUSION

Confession as physical evidence has high probative value and is most valued in court. A conviction can only
be based on a confession if it is evident that the confession was voluntary and credible. Confession is so
powerful that it can push the whole process in a certain direction. The seriousness that accompanies a
confession must not be compromised. It must be observed with great care and deliberation in order to rule
out the slightest possible sources of error. Confession must always be the result of a guilty and remorseful
conscience. The reason for confession should always be one of remorse and remorse, not of repression or
influence. Ensuring the truthfulness and voluntary nature of the confession therefore becomes imperative.
Although external threats and fears adversely affect the quality of police confessions, all necessary steps are
taken to ensure that these factors are eliminated when confessions are brought before a judge. The basic rule
is to ensure the reliability and reliability of this evidence through the courts. Therefore, a person must always
be protected from saying hurtful things, unless his conscience compels him to do so.
 BIBLIOGRAPHY

BOOKS-

 Lal Batuk , The Law Of Evidence ( 23rd Edition , Central Law Agency,2022)

 Lexis Nexis

WEBSITES-

 http://www.legalservicesindia.com/ 
 https://indiankanoon.org/ 
 https://www.writinglaw.com/ 
 https://blog.ipleaders.in/