NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI

SUBJECT- LAW OF EVIDENCE

TOPIC: A CRITICAL STUDY ON HOSTILE WITNESSES

SUBMITTED BY: SUBMITTED TO:

NAME: NIRAJ KUMAR MR. SHUBHAM

SRIVASTAVA

ROLL NO. : 1055 ASST.

PROFESSOR (LAW)

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SEMESTER: V (A)

TABLE OF CONTENTS
ABSTRACT...............................................................................................................................3
CHAPTER-1..............................................................................................................................4
INTRODUCTION......................................................................................................................4
RESEARCH OBJECTIVE.....................................................................................................5
RESEARCH QUESTIONS....................................................................................................5
RESEARCH HYPOTHESIS.................................................................................................5
RESEARCH METHODOLOGY...........................................................................................5
LITERATURE REVIEW.......................................................................................................6
CHAPTER-2..............................................................................................................................7
“CONFESSION” UNDER THE INDIAN EVIDENCE ACT...................................................7
Ingredients of Section 24: -....................................................................................................8
CHAPTER-3..............................................................................................................................9
VARIOUS TYPE OF CONFESSION AND PROCESS OF RECORDING CONFESSIONS.9
 Confession by Co-Accused...........................................................................................11
 Confession to Police......................................................................................................11
CHAPTER-4............................................................................................................................14
STATEMENT RECORDING..................................................................................................14
CHAPTER-5............................................................................................................................15
INCREASING VULNERABILITY TO CUSTODIAL TORTURE.......................................15
CHAPTER-6............................................................................................................................16
CONCLUSION........................................................................................................................16
BIBLIOGRAPHY....................................................................................................................17
BOOKS................................................................................................................................17
JOURNAL............................................................................................................................17
LEGISLATIONS.................................................................................................................17

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 ABSTRACT
Cases of wrongful conviction show that not all confessors are guilty. However, there is
currently no validated process for evaluating the veracity of admissions. As a result, a
confession may have a huge effect on jurors and judges. According to research, even if no
other evidence linking a suspect to a crime was presented, the mere presence of a confession
tripled the chances of being found guilty rather than acquitted at trial. This could explain why
false confessions are involved in nearly 29 percent of the cases investigated by the Innocence
Project. The long-term consequences of wrongful convictions for all parties concerned
illustrate the need for impartial measures to check a confession's veracity. This paper
discusses about the wrongful convictions made with the relevance of false confession made.
It also discusses whether the confession was proven to the police office is validate or not.
This paper discusses the cases related to the topic. It also studies the concept of wrongful
confession under the evidence law,18721. Also studies about the accused confession made
under police custody and how the evidences are produced against him.

1
Indian Evidence Act, 1872

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 CHAPTER-1

INTRODUCTION

“Confession is an admission made at any time by a person charged with a crime stating or
suggesting the inference that he committed that crime.”

– Justice Stephen (Digest of the Law of Evidence)

The most satisfactory evidence in a case is the confession made by the accused. The basic
application of it rests on the truth and accuracy of the said confession. It comes out from a
great sense of guilt. Confession can be the decision-makers in a trial. In the Indian Evidence
Act, 18722 the confessions are not explicitly defined but it comes under the category of
admission, the accused admits to his guilt. The confession of an accused cannot be taken as
the sole reason for conviction, it should be corroborated with other evidence. However, in a
few instances, a confession made by the accused may result in mistreatment of the subject,
due to its high probative value. Under the Indian evidence act, Section 24 to Section 30 deals
with “confession”. Under the Criminal Procedure Code, Section 164, 281, and 463 deals with
confessions.3

”.In the case of Palvinder Kaur v State of Punjab 4 the Supreme Court approved the Privy
Council decision in Pakala Narayana Swami case over two scores. Firstly, that the definition
if confession is that it must either admits the guilt in terms or admit substantially all the facts
which constitute the offence. Secondly, that a mixed up statement which even though
contains some confessional statement will still lead to acquittal, is no confession. Thus, a
statement that contains self-exculpatory matter which if true would negate the matter or
offence, cannot amount to confession. However in the case Nishi Kant Jha v State of Bihar 5
the Supreme Court pointed out that there was nothing wrong or relying on a part of the
confessional statement and rejecting the rest, and for this purpose, the Court drew support

2
Indian Evidence Act, 1872
3
Criminal procedure code,1973
4
Palvinder Kaur vs The State Of Punjab 1952 AIR 354
5
Nishi Kant Jha vs State Of Bihar 1969 SCR (1)1033
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from English authorities. When there is enough evidence to reject the exculpatory part of the
accused person’s statements, the Court may rely on the inculpatory part.

RESEARCH OBJECTIVE
 To know the admission and confession
 To know the third degree methods by police on confession
 To know about judicial and extrajudicial confession
 To determine the methods of confession to police.
 To know the use of confessional statement by accused and recommendation.

RESEARCH QUESTIONS
 What is the status quo of confession in Indian criminal justice system?
 What are the views of hon’ble courts about confession?

RESEARCH HYPOTHESIS
Confession plays a pivotal role in the pursuit of a criminal trial, the foundation of which rests

on truth and accuracy. It is an acknowledgement of guilt by the accused. The truthfulness of

the confession runs in favour of the accused, as the logical fallout dictates that it flows from

the strongest sense of guilt, thus, must be given the highest credit. Hence, confession plays a

decisive role in the determination of the trail.

RESEARCH METHODOLOGY
 The Methodology adopted by the researcher: Doctrinal Research
 Sources of Data: For this research, the author of the present article will depend upon
Secondary Sources of Data. The researcher would rely on the books, statutes,
laws,regulations, cases, judgements and articles discussing various websites.

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LITERATURE REVIEW
 Critical analysis of confession under IEA, Mr.S.G. Goundappanavar, June,2014: -
Confessions made under the Indian Evidence Act1872, which also deals with police
atrocities and criminal cases brought against the accused person and guilty key of an
accused person, are inadmissible under Article 20(3) of the Indian Constitution.
 Confession appears for the first time in section 24 of Indian evidence act, Shraddha: -
Section 24 of the Indian evidence Act of Confession deals with judicial and
extrajudicial confessions, as well as legal proceedings of a plea who has a guilty mind
on a single person's arrangements.
 The Indian police: A critical evaluation, A. Varma, 2005: - The design of police
officers' adaptability and systemic issues, as well as the skills and performance of
British rulers and imperial forces, are corrupt and have barbaric practices.
 Critical analysis on confession, Arupan Gupta,2014: - Accused person in power,
inducement of promise, and fair in bargaining the criminal process of charge of the
accused person who has committed a crime against police officers.

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 CHAPTER-2

“CONFESSION” UNDER THE INDIAN EVIDENCE ACT

According to Sir James Stephen “An admission made at any time by a person charged with a
crime stating or suggesting the inference that he committed a crime”

The word confession appears for the first time in section 24 6 in Indian evidence act,18727.
The confessions are clearly one form of admission, since this section falls under the heading of
Admission. The Act does not define confession. “Confession is an admission made at any time by
a person charged with a crime confirming or implying the conclusion that he committed the
crime.

In Pakala Narayan Swami v Emperor8 Lord Atkin observed: - “A confession must either
accept the offence in terms or at the very least significantly all the details that make up the
offence. An admission of a gravely incriminating fact, even if it is conclusively incriminating,
is not a confession in and of itself.”
In the case of Palvinder Kaur v State of Punjab 9 the Supreme Court approved the Privy
Council decision in Pakala Narayan Swami case over two scores.
To begin with, confession is described as either admitting guilt in terms or admitting
substantially all of the facts that constitute the offence. Second, a jumbled statement, even
though it includes some confessional statements, would always result in acquittal, is not a
confession. As a result, a statement containing self-exculpatory information that, if valid,
would negate the issue or offence, cannot amount to confession.

6
https://blog.ipleaders.in/confessions-under-the-indian-evidence-act/

7
Indian Evidence Act, 1872

8
Pakala Narayana Swami vs Emperor (1939) 41 BOMLR 428
9
Palvinder Kaur vs The State Of Punjab 1952 AIR 354

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However in the case Nishi Kant Jha v State of Bihar10 the Supreme Court pointed out that,
there was nothing wrong with relying on part of a confessional statement and denying the
rest, and the Court drew support from English authorities for this reason. The Court could
depend on the inculpatory part of the accused person's statements if there is enough evidence
to reject the exculpatory part.

INGREDIENTS OF SECTION 24: -

The following facts must be identified in order to trigger the prohibition enacted in Section 24:
 That the statement in question is a confession,
 That the accused has made such a confession,
 That it has been made to a person in authority,
 That the confession was obtained by reason of any inducement, danger, or promise
coming from a person in authority,
 The inducement, danger, or promise must be related to the accusation against the accused,
and
 The inducement, threat, or promise must, in the judgement of the court, be sufficient to
give the accused a legitimate basis for believing that by making it, he will obtain any
benefit or escape any temporal evil in connection with the proceedings against him.

10
Nishi Kant Jha vs State Of Bihar 1969 AIR 422
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 CHAPTER-3

VARIOUS TYPE OF CONFESSION AND PROCESS OF RECORDING

CONFESSIONS
A confession may be of the different type according to the matter of the cases.
Broadly confession is differentiated into two different statuses like- when the confession by
the means of statements is given itself in the court of law then such confession will be
considered as judicial confession, whereas, when the confession by the way of statements is
produced at any place other than court then such confession will lead towards extrajudicial
confession. The different sets of confession do not have the same evidentiary values as of
others and hence their values degrade and upgrade by the circumstance that how what and
where these confessions are made. The exceptional feature of confession is that a
conversation to himself also leads toward a confession and this feature was lighted in the case
of Sahoo v. the State of U.P11. where the accused has murdered his son’s newly wedded wife
as he usually has serious arguments with her, and when the accused killed daughter-in-law it
was seen and heard by many people living there that he was uttering words while stating that
“I finished her and now I am free from any daily quarrels”. The court observed in this case
that the statement or the self conversation made by the accused shall be considered as a
confession to prove his guilt and such confession should be recognised as a relevant in
evidence in administering justice, and just being in the case that the statements are not
communicated to any other person, other than him does not dilutes the relevancy of a
confession. Therefore confession made to himself is also quality evidence which will be
considered as relevant evidence in a court of law.

 Formal Confession: - Formal confession is also known as Judicial Confession, and it

refers to claims made before a judge or in a court of law during a criminal proceeding.
A judicial confession is nothing more than a "plea of guilty" as specified by Article
20(3)12 of the Indian Constitution; otherwise, any confession made against the person

11
Sahoo vs State Of U.P 1966 AIR 406
12
Article 20 of the Indian Constitution, 1950 : Protection in respect of conviction of offences
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 making the confession has no evidentiary value, and he cannot be found guilty of any
crime on the basis of such confession.

 Informal Confession: - Extrajudicial confession refers to claims made outside of a

court or in the absence of a judge. It was not appropriate for the statements to be
addressed to a specific person. Informal confession can be made in the form of prayer,
in any private space, or in a self-conversation, just as it can be made in the form of
judicial confession. However, the court must ensure that the accused's confession,
whether judicial or extrajudicial, is consistent with Article 20(3) 13 of the Indian
Constitution, which states that "No one should be coerced to give evidence against
himself." This means that the confession must be made freely and truthfully, and only
then may a person be charged with a crime. Extrajudicial confession occurs when a
person confesses his guilt of the crime he committed to a private person, such as a
friend or a family member. While both judicial and extrajudicial confessions are
admissible in court, they have different evidentiary or probative value in establishing
some reality. That is, a conviction will not be based solely on the confession; rather,
the court will examine the extrajudicial confession in order to find a person guilty of
whatever crime he has committed.
In, State of Punjab v. Bhagwan Singh14 the Supreme Court in this case held that, In this
case, the Supreme Court held that the validity of an extrajudicial confession increases only if
it is clearly compatible and persuasive with the case's conclusion ;otherwise, the accused
cannot be held responsible for his guilt solely on the grounds of his confession.

In, Balwinder Singh v. State15 the Supreme Court has mentioned some guidelines in the
form of deciding the case that In the case of an extrajudicial confession, the court must assess
the integrity of the person making the confession, and all of his claims must be examined by
the court in order to determine if the person making the confession is trustworthy or not;

13
Article 20 of the Indian Constitution, 1950 : Protection in respect of conviction of offences
14
Bhagwan Singh vs The State Of Punjab 1952 AIR 214
15
Balwinder Singh vs State Of Punjab 1995 SCC Supl. (4) 259
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otherwise, if the person making the confession is not trustworthy, his statements cannot be
used to prove the accused's guilt.

In, Sahadevan v. State of Tamil Nadu 16 the Supreme Court while deciding the case has
made few principles in the form of guidelines where the court has to check such principles
before admitting the confession of the accused, The following principles mentioned by the
Supreme Court are:
• Extrajudicial confessions are typically a very poor type of evidence on their own, and
the court must thoroughly analyses such claims.

• Extrajudicial confessions should be made with one's own free will and must be
truthful.

• When extrajudicial confessions are backed up with other facts, their evidentiary value
skyrockets.

• The confessor's comments must demonstrate his guaranty

 Confession by Co-Accused

When there are more than one accused in the case and one of them admits to the crime in
such a way that he will be proved guilty and such a confession is made voluntarily and
without any pressure, then the court can also hold all the other accused guilty as well.

 Confession to Police

A confession to the police cannot be held against that person. This is so because such
confession before the police can be a result of threat, pressure and sheer fear. There are many
cases of torture during police custody as well and a person may be well under fear when he is
confessing to a crime. So, such a confession would be quite unreliable.

16
Sahadevan & Anr vs State Of TamilNadu (2012) 6 SCC 403.
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If there is a secret agent of police who is deputed with the aim of getting a confession from
someone then such a confession would hold no value. In any other situation where the
confession was made without the presence of a police would still qualify as a confession.

Exclusion of confessional statements: If any statement even if made to the policeman falls
short of a confession will be admissible in the court of law. For example: if the accused tells
the police that he witnessed the murder in question would lead to an evidence against him
proving that he was present when the murder took place.

In Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 157917, supreme court noted: The police
investigation seems to revolve around the archaic effort to extract confessions by whatever means
necessary. It's important for cops to know that confession isn't always a quick fix. They should
aim to "arrive" at a confession rather than "start" from it. Otherwise, good evidence can be lost
due to inattention to real clues when they are focused on their short-cut to success. When a
confession is made, there is always a swell of desire to conduct a thorough investigation in order
to create the case de hors the confession; but, when the confession is then found to be
inadmissible for one cause or another, the case stalls in court.

In R v. Murugan Ramasay, (1964) : - the court opined that The law recognises and protects
against the danger of people making incriminating confessions in order to appease authorities,
regardless of whether or not what they are saying is true.

Confession in an FIR: The part of the confessional FIR (First Information Report) which
does not amount to a confession can be admissible in the court of law. That part of the FIR
can also be used against him as evidence.
Statements given during an investigation: A statement given to the police confessing to a
crime even before he has been established as an accused is irrelevant. Confession made in
Police Custody: A confession made in police custody holds no value unless it is a confession
made to the magistrate. The word custody does not have to be merely physical. It does not
mean that a policeman has to hand-cuff someone and take control of that person physically.
Anytime the movement of a person is controlled by a police officer he is deemed to be under

17
Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 1579
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custody. For example, A police officer asks ‘X’ to follow him as he is a lead in a murder
case. If X follows him, he is deemed to be in the custody of the police officer.

However, even though the confession made by the accused to the police cannot be used
against him, he can rely on those statements in his defence. For example, there is a statement
in the FIR that says that the accused stabbed someone. It cannot be used against him to
convict him. However, he can rely on those statements to show that he may have taken such
steps out of grave fear and provocation.

Any confession that is made under threat or in return for any promise related to the charge
could also be irrelevant.
Retracted Confession: - The concept of retraction in English is "the action of drawing back
something." Retraction confession is a form of confession in which the confessor makes a
voluntary confession that is then reversed or retracted by the same confessor. If it is substantiated
by other independent and corroborative facts, a retracted confession may be used against the
individual who is confessing any retracted statements.

In Pyare Lal v. State of Rajasthan18 the Supreme Court, In this case, the Court determined that a
withdrawn confession has sufficient validity to provide all other legal basis for conviction only if
the Court is satisfied that it was valid and made of someone's own volition. However, the Court
must testify that convictions cannot be based solely on confessions unless and unless they are
corroborated.

18
Pyare Lal Bhargava vs State Of Rajasthan 1963 AIR 1094,
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 CHAPTER-4

STATEMENT RECORDING
According to the statute, the confession booth explanation must be registered "either in
writing or on some mechanical or electronic device such as tapes, tapes, or soundtracks from
which sound or pictures may be replicated" (Section 32 (1) POTA) 19. Except for the
extension of the term 'electronic,' this is a verbatim copy of the applicable structure in the
TADA Act (Section 15 (1))20. According to both of these agreements, the admission can only
be recorded by a police officer who is not lower in rank than a Superintendent of Police.
In State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari and Ors. It was
noted that:- Admissibility of evidence - Indian Evidence Act, 1872 - Whether, confessional
statements recorded before witnesses, by persons who were not accused in Special Case No.
21 of 2006, would be admissible Held, confessions made by Accused in Special Case No. 4
of 2009 were sought to be adopted for establishing fact, that it was not Accused/Respondents
who were responsible for seven bomb blasts in seven different first class compartments of
local trains of Mumbai Suburban Railways- However, it was Accused in Special Case No. 4
of 2009 who had already confessed their crime.
State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru 21- In India's past, the case of
Afsan Guru stands out as one of the few attacks carried out with the intent of undermining the
country's sovereignty. Although the case had many nuances relating to the admissibility of
electronic records and the impact it may have on the judgment, the apex court ultimately
partially ruled in favor of the appellants, acquitting one of the accused of some charges and
dismissing the appeal for S.A.R Gilani and Afsan Guru's conviction. However, after much
deliberation, lawmakers decided to enact a law that makes electronic documents admissible
in court in order to meet the challenges of the twenty-first century

19
http://en.wikipedia.org/wiki/Prevention_of_Terrorism_Act,_2002
20
TADA § 15; POTA § 32.
21
State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru AIR 2005 SC 3820
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 CHAPTER-5

INCREASING VULNERABILITY TO CUSTODIAL TORTURE

The advent of Custodial death and torture has peaked in its crisis, as reported by the
National Campaign Against Torture, which states that 1,731 persons died in custody in the
year 2019 alone, estimating 5 deaths every day of the year. These constituted 1,606 deaths in
judicial custody and 117 deaths in police custody in total.

The problem of death and torture in custody, already in much prevalence in most states dated
back several years has been recently grievously highlighted in the case of P.Jayaraj and
J.Benix22, both inhabitants of Santhankulam in Tuticorin, in the state of Tamil Nadu, the
father – son duo were arrested and held in custody under the accusation of keeping their shop
open during the imposed mandatory curfew hours. They were later both seen with marks
indicating heinous torture and sexual assault, and soon succumbed to their injuries in a local
government hospital. The news of the manner of their subsequent death has shook the nation
and left its citizens aghast and generally distrustful of the uniform made to serve and protect
them.

22
Kaveri, Megha (26 June 2020). "Justice for Jayaraj and Bennix: Timeline of two shocking custodial
deaths in TN". The News Minute. Retrieved 29 June 2020.
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 CHAPTER-6

CONCLUSION
This change in the Evidence Act23 is necessary so as to invigorate the trust and faith of
the people of India in the Judiciary that they will be provided imparted speedy justice to the
wrongs done to them by any person. The draft Criminal Law (Amendment) Bill, 2003 in its
statement of objects and reasons mentions that the disposal of criminal trials in the courts
takes considerable time and that in many cases trial do not commence for as long as 3 to 5
years after the accused was remitted to judicial custody. In lieu of this, it is pertinent that
provisions of Criminal Law be changed so as to reduce the time needed for a common person
to get justice. After all “Justice should not only be done, but also be seen to be done’’.

23
Indian Evidence Act, 1872

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 BIBLIOGRAPHY
BOOKS
 DR. V. KRISHNAMACHARI, LAW OF EVIDENCE, NARENDRA GODIA AND
COMPANY, HYDERABAD, 7 TH ED., (2014).
 R. V. KELKAR, CRIMINAL PROCEDURE, EASTERN BOOK COMPANY, (5th
ed. 2014).
 RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE, LEXIS
NEXIS, (22nd ed. 2017).

JOURNAL
 Analysis Of Various Aspect Of Law Relating To Confessions, INTERNATIONAL
JOURNAL OF LEGAL DEVELOPMENTS AND ALLIED ISSUES, 2017.
 Appreciation of Evidence in Criminal Cases, Title NO.37(AS PER WORKSHOP
LIST
 Arya & Shivshankar, Study on Confession under Indian Evidence Act, 1872,
INTERNATIONAL JOURNAL OF PURE AND APPLIED MATHEMATICS ISSN:
1314-3395, Volume 120, No. 5, 2018.
 John Getreu, Evidence: Admissibility of Confession, WILLIAM & MARY REVIEW
OF VIRGINIA LAW, Volume 1 Issue 2.
 P Perera, Admissibility of Confessions in Criminal Proceedings, NATIONAL
CRIMINAL JUSTICE REFERENCE SERVICE, 1977.
 Richard May, Admissibility of Confessions: Recent Development, JOURNAL OF
CRIMINAL LAW: SAGE JOURNALS, 1991

LEGISLATIONS
 The Code of Criminal Procedure, 1973.
 The Evidence Act, 1872.
 The Indian Penal Code, 1860.

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