University Institute of Legal Studies

Project Report on Topic :- Confession and Evidentiary Value

(section 24-30)

SUBMITTED BY : SAHIL JINDAL 77/13

VEENA 110/13
SUBMITTED TO : DR.SABINA SALIM
CLASS : B.A.LL.B.(4th YEAR)
SEMESTER : 7th
SECTION :B

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 ACKNOWLEDGEMENT

We would like to express our special thanks of gratitude to our teacher

[DR.SABINA SALIM] who gave us the golden opportunity to do this wonderful
project which also helped us in doing a lot of research and we came to know
about new things .

We are really thankful to them. The blessing, help and guidance given by her
time to time shall carry us a long way in the journey of life on which we about
to embark.

Secondly we would also like to thank our parents and friends who helped us a
lot in finishing this project within the limited time. We are making this project
not only for marks but to also increase our knowledge. Thanks again to all who
helped us.

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 INDEX
S.NO. PARTICULARS PAGE NO.

1 TABLE OF CASES 4

2 SECTION 24-27 OF INDIAN 5-27

EVIDENCE ACT

3 SECTION 28-3O OF INDIAN 28

EVIDENCE ACT

4 RECENT CASE LAWS & 29-44

CONCLUSION

5 BIBLIOGRAPHY 45

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Table of Cases

Aghnoo Nagesia vs State Of Bihar

Dagdu v. State of Maharashtra
Emperor v. Balmukund
Gura Singh Vs. State of Rajasthan
Hanumant v. state of M.P
Mohammad Ajmal Mohammad Amir kasab Alias Abu Mujahid
v. State of Maharastra
Kashmira Singh v. State of MP ,
Kishore Chand v. State of Himachal Pradesh
Nishi Kant Jha v State of Bihar
Pakala Narayanaswami v. The King Emperor
Pandu Rang Kallu Patil v. State of Maharashtra
Pyare Lal v. State of Rajasthan
R. v. Lester
Rahim Beg.v. State of U.P
Sahoo v. State of U.P.
State (NCT)of delhi v. Navjot Sandhu
State of Karnataka v. A.B.Nag Raj
State of Maharashtra v. Bharat Ehagan Lal Raghani,
Suresh Chandra Bahri v. State of Bihar
Suresh vs State Of Haryana

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 INTRODUCTION
CONFESSION:-
The word confession appears for the first time in Section 24 of the Indian Evidence Act.
This section comes under the heading of Admission so it is clear that the confessions are
merely one species of admission. Confession is not defined in the Act. Mr. Justice Stephen in
his Digest of the law of Evidence defines confession as confession is an admission made at
Ant time by a person charged with a crime stating or suggesting the inference that he
committed the crime.

This definition was discarded by the Judicial Committee in Pakala Narayanaswami v. The
King Emperor1. Lord Atkin observed :

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

However in the case Nishi Kant Jha v State of Bihar2 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 from English authorities. When there is
enough evidence to reject the exculpatory part of the accused persons statements, the Court
may rely on the inculpatory part.

In Hanumant3 case also where an officer was prosecuted for forgery in tampering with a
tender document and , a letter , there was no choice , the confessional statement being the
only evidence on record. The letter in question was typed on a machine which was purchased
by the office much later than the date of the letter , which showed that letter was deliberately
antedated. The explanation of the officer was that the machine was with them for trial before
ultimate purchase. There being no other evidence to contradict this explanation ,the court
held that the statement should be acceptedor rejected as whole . so was true of the
Balmukund4 case.

But in case of Aghnoo Nagesia vs State Of Bihar5, the S.C. held that we cannot divide the
confession into various parts whether it contains both exculpatory statement and inculpatory
statements.

1
AIR1939 PC 40
2
1969 AIR 422, 1969 SCR (1)1033
3
Hanumant v state of M.P.,A.I.R.1952 S.C.
4
Emperor v. Balmukund,(1930)52All.1011
5
1966 AIR 119, 1966 SCR (1) 134

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Admission and confession :-
Section 17 to 31 deals with admission generally and include Section 24 to 30 which deal with
confession as distinguished from admission.

Confession Admission
1. Confession is a statement made by an 1. Admission usually relates to civil transaction
accused person which is sought to be and comprises all statements amounting to
proved against him in criminal admission defined under section 17 and made
proceeding to establish the commission by person mentioned under section 18, 19 and
of an offence by him. 20.
2. Confession if deliberately and
2. Admissions are not conclusive as to the
voluntarily made may be accepted as
matters admitted it may operate as an estoppel.
conclusive of the matters confessed.
3. Admissions may be used on behalf of the
3. Confessions always go against the
person making it under the exception of section
person making it
21 of evidence act.
4.Confessions made by one or two or
more accused jointly tried for the same 4. Admission by one of the several defendants
offence can be taken into consideration in suit is no evidence against other defendants.
against the co-accused (section 30)
5. admission is statement oral or written which
5. confession is statement written or oral
gives inference about the liability of person
which is direct admission of suit.
making admission.

Forms of confession:-
A confession may occur in many forms. When it is made to the court itself then it will be
called judicial confession and when it is made to anybody outside the court, in that case it
will be called extra-judicial confession. It may even consist of conversation to oneself, which
may be produced in evidence if overheard by another. For example, in Sahoo v. State of
U.P.6 the accused who was charged with the murder of his daughter-in-law with whom he
was always quarrelling was seen on the day of the murder going out of the house, saying
words to the effect : I have finished her and with her the daily quarrels. The statement was
held to be a confession relevant in evidence, for it is not necessary for the relevancy of a
confession that it should be communicated to some other person.

Judicial confession- Judicial confessions are those which are made before a magistrate
or in court in the due course of legal proceedings.

6
1966 AIR 40, 1965 SCR(3) 86

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 Extra-judicial confessions- Extra-judicial confessions are those which are made
by the accused elsewhere than before a magistrate or in court. It is not necessary that
the statements should have been addressed to any definite individual. It may have
taken place in the form of a prayer. It may be a confession to a private person. An
extra-judicial confession has been defined to mean a free and voluntary confession
of guilt by a person accused of a crime in the course of conversation with persons
other than judge or magistrate seized of the charge against himself. A man after the
commission of a crime may write a letter to his relative or friend expressing his
sorrow over the matter. This may amount to confession. Extra-judicial confession can
be accepted and can be the basis of a conviction if it passes the test of credibility.
Extra-judicial confession is generally made before private person which includes even
judicial officer in his private capacity.
In case Rahim Beg.v. State of U.P 7 The supreme court remarked that an extra
judical confession to afford a piece of reliable must stand the test of reproduction of
exact words , the reason and motive for confession and the person selected in whom
confidence id reposed .

Voluntary and non-voluntary confession- The confession of an accused may be

classified into Voluntary and non-voluntary confession. A confession to the police officer is
the confession made by the accused while in the custody of a police officer and never
relevant and can never be proved under Section 25 and 26. Now as for the extra-judicial
confession and confession made by the accused to some magistrate to whom he has been sent
by the police for the purpose during the investigation, they are admissible only when they are
made voluntarily. If the making of the confession appears to the court to have been caused by
any inducement, threat or promise having reference to the change against the accused person
proceeding from a person in authority and sufficient in opinion of the court to give the
accused person grounds, 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 proceeding against him, it will not be relevant and it cannot be proved against the person
making the statement. Section 24 of the Evidence Act lays down the rule for the exclusion of
the confession which are made non-voluntarily.

7
AIR 1972 S.C.759

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Section 24 of Indian Evidence Act - confession caused by inducement, threat or
promise, when irrelevant in criminal proceeding- A confession made by an accused person is
irrelevant in a criminal proceeding, if the making of the confession appears to the court to
have been caused by any inducement, threat or promise having reference to the charge
against the accused person, proceeding from a person in authority and sufficient, in the
opinion of the court, to give the accused person grounds, which would appear to him
reasonable, for supporting that by making it he would gain any advantage or avoid any evil of
temporal nature in reference to the proceeding against him.

If a confession comes within the four corners of Section 24 is irrelevant and cannot be used
against the maker.

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
proceeding against him.

1. Confession made by inducement, threat or promise- A confession should be

free and voluntary. If it proceeds from remorse and a desire to make reparation for the
crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is
inadmissible. The term inducement involves a threat of prosecution if the guilt is not
confessed and a promise of forgiveness if it is so done. It is very difficult to lay down any
hard and fast rule as to what constitutes inducement. It is for the judge to decide in every
case. An inducement may be express or implied, it need not be made to the accused directly
from the person in authority. Before a confession can be received as such, it must be shown
that it was freely and voluntarily made. This means that the confession must not be obtained
by any sort of threat or violence, not by any promise either direct or indirect, expressed or
implied, however slight the hope or fear produced thereby, not by the exertion of an
influence. The ground on which confessions made by the accused under promises of favour
or threats of injury are excluded from evidence is not because any wrong is done to the
accused in suing than but because he may be induced by pressure of hope or fear to confess
the guilt without regard to their truth in order to obtain relief or avoid the threatened danger.
Thus it is clear that if threat or promise from persons in authority is used in getting a
confession it will not be taken into evidence. Every threat or inducement may not be
sufficient to induce the accused to confess a guilt. The proper question before excluding a
confession is whether the inducement held out to the prisoner was calculated to make his
confession untrue one. The real enquiry is whether there had been any threat of such a nature

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that from fear of it the prisoner was likely to have told an untruth. If so, the confession should
not be admitted.

In case of an ordinary confession there is no initial burden on the prosecution to prove that
the confession sought to be proved is not obtained by inducement, threat, etc. It is the right of
the accused to have the confession excluded and equally the duty of the court to exclude it
even suo moto. It is idle to expect that an accused should produce definite proof about
beating or pressure.

2. Inducement must have reference to the charge- The inducement must have
reference to the charge against the accused person that is the charge of offence in the criminal
courts and inferencing the mind of the accused with respect to the escape from the charge.
The inducement must have reference to escape from the charge. Thus, it is necessary for the
confession to be excluded from evidence that the accused should labour under influence that
in reference to the charge in question his position would be better or worse according as he
confesses or not. Inducements in reference to other offences or matters or offences committed
by others will not affect the validity of the confession thus, where a person charged with
murder, was made to confess to a Panchayat which threatened his removal from the caste for
life, the confession was held to be relevant, for the threat had nothing to do with the charge.

The inducement need not be necessarily expressed. It may be implied from the conduct of the
person in authority, from the declaration of the prisoner or the circumstances of the case.
Similarly it need not be made to the prisoner directly; it is sufficient to have come to
his knowledge provided it appears to have induced to confession.

3. Threat, inducement and promise from a person in authority- the threat,

inducement and promise on account of which the accused admits the guilt must come from a
person who has got some authority over the matter. To be clear the person giving different
promises, threatening the accused or inducing him to make the confession must be a person in
authority as stated in the Pyare Lal v. State of Rajasthan 8 . If a friend of the accused
induces him to make a confession or a relation if he makes him a promise that if he confesses
he will get him released or even if he threatens him and the accused on that account admits
his guilt this statement will not be excluded by Section 24 as the threat, inducement or
promise do not emanate from a person in authority.

If the accused makes the confession thinking that by doing so the authorities would soften the
attitude towards him the confession cannot be said to be non-voluntary.

The term person in authority within the meaning of Section 24 was held to be one who has
authority to interfere in the matter charge against the accused. If this definition is to be
accepted that term a person in authority would mean only the police who are in charge of
the investigation and the magistrate who is to try the case. This view appears to be too
restrictive. It appears that a person in authority within the meaning of Section 24 should be
one who by virtue of his position wields some kind of influence over the accused.

The question as to whether a person to whom a confession has been made is a person in

8
1963 AIR 1094, 1963 SCR SUPL. (1) 689

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authority would naturally depend on the circumstances of each case having regard to the
status of the accused in relation to the person before whom the confession is made. A house
surgeon is a person in authority in relation to nurse of the same hospital.

4.Sufficiency of the inducement, threat or promise- before a confession is

excluded, inducement, threat or promise would in the opinion of the court be sufficient to
give the accused person ground which would appear to the accused reasonable for supposing
that by making the confession he would gain an advantage or avoid an evil of the nature
contemplated in the section. Consequently the mentality of the accused has to be judged and
not the person in authority. That being the case, not only the actual words, but words
followed by acts or conduct on the part of the person in authority, which may be taken by the
accused person as amounting to an inducement, threat or promise, will have to be taken into
account. A perfectly innocent expression, coupled with acts or conduct on the part of the
person in authority together with the surrounding circumstances may amount to inducement,
threat or promise. It does not turn upon as to what may have been the precise words used but
in each case whatever the words used may be it is for the judge to consider whether the words
used were such as to convey to the mind of the person addressed an intimation that it will be
better for him to confess that he committed the crime or worse for him if he does not. The
expression, whatever you say will be used as evidence against you will not exclude a
confession. On the other hand you better pay the money than go to jail, if you tell me
where my goods are I will be favourable to you, I will get you released if you tell me the
truth, have been held to be sufficient to give the accused grounds for supposing that by
making the confession he would gain an advantage or avoid an evil.

It must be borne in the mind that the advantage gained or the evil avoided must be of
temporal nature therefore any inducement having reference to a future state of reward or
punishment does not affect the admissibility of confession. A confession will not be excluded
which has been obtained by the accused by moral or religious exhortation. The expression
you had better as good boys tell the truth, kneel down and tell me truth in the presence of
the Almighty, do not give out any temporal gain and so the confession derived on these
confessions are not excluded by Section 24. Confession obtained on the allegation by the
panches that if the accused does not confess he shall be excommunicated will not exclude the
confession. It should be borne in the mind that the gain or evil must be in reference to the
proceeding against him.

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

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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.

Case study

In State of Karnataka v. A.B.Nag Raj9 there was allegation that the deceased girl was killed
by her father and step-mother in the National park. The alleged extra-judicial confession was
made by accused during detention in forest office. No mention of said confession in report
given to police nor any witness present there mentioning about the same confession. This
extra judicial confession cannot be relied upon. Before relying on extra-judicial confession, it

9
APPEAL (CRL.) 60 OF 1995

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must be considered whether the confession was really made. It should also be considered as
to why the accused reposed confidence in the witnesses stating about the confession. It was
alleged that the accused made confession to a witness who was the widow of one of the
conspirators and was helping her husband in making spears and other weapons. It was held
that the confession was not reliable

FACTS

On 05-10-1985 both the accused and the deceased went to Bennerghatta National Park. PW5,
Kunniga saw all of them walking towards Mavinahalla. After some time he heard a cry
"ayyayyo". He looked around but saw nothing. A little later he saw A1 and A2 coming from
that side. He approached them and asked them how come they were three when they went
and only two returning. The accused replied that the girl was moving about eating groundnuts
and doing other things. He was not convinced with the reply. He took them to the Range
Forest Office and narrated the incident to PW3, Forester Linge Gowda. PW3 sent some of the
Watchers including PW4, PW5 and both the accused to the spot for further inquiry. They
found the deceased girl lying with tied hands behind the neck with a kerchief and neck with a
towel. A green jacket was found thrust into her mouth. Thereafter, PW1 B Nagaraj, Range
Officer was informed. PW1 verified the fact and forwarded a Report (Exb P-1) to
Bennerghatta Police Out Post. Later, PW 10, Police Head Constable arrested the accused
from the Forest Office. PW 10 took a personal search of A1 and found 9 tickets (MO 1).
PW2, Dr. Shivaprakash, who conducted the post-mortem, found that death was caused due to
asphyxia on account of strangulation. A1 and A2 were charged under Section 302 read
with Section 34 IPC. The accused pleaded not guilty.

ISSUES RAISED
Whether extra- judicial confession can be relied on or not?

ARGUMENTS IN FAVOR OF PETITIONER:-

The main contention raised by the petitioner was that the deceased met with homicidal death
as result of asphyxia due to strangulation. PW5 deposed that he saw the deceased last with
A1 and A2. He also saw them returning from the place where he heard the cry.

ARGUMENTS IN FAVOUR OF ACCUSED

Huge fence and bushes surround the place where PW5 was working and consequently, that
the High Court held that the deposition of PW.5 to the effect that he saw the deceased with
A1 and A2 going towards Mavinahalla to be unbelievable. Admittedly the place of
occurrence is about 200 to 250 feet from his place of work. He also stated that upon seeing
him A1 or A2 had not tried to run away or even attempted to do so. This circumstance was
also held in favour of the accused.

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Secondly the fact of the alleged ill treatment by the accused and the so- called 'bad character'
of Neelamma, which could have been treated as the cause and motive of the murder is also
not sufficiently proved. This seems to be a cooked-up story. He also contented that the
accused made extra judicial confession that we killed deceased because of her bad character.

Another aspect is the alleged extra-judicial confession made to PW3 but his deposition is
liable to be rejected on two counts. The fact of such a confession that was said to have been
made in the Forest Office during the detention of the accused was not mentioned in the
Report [Ex. P1] given by PW1. Since PW1 came to know about the incident from PW3 it is
improbable that this crucial fact of extra-judicial confession has not found a place in the
Report. Again neither PW4 nor PW5 made any mention about such a confession

LAW ON EVIDENTIARY VALUE OF CONFESSION

If confession is voluntary and judicial confession then it can be the sole basis of conviction
but if confession is not voluntary and if it is extra judicial confession it can not be sole basis
of conviction . Main reason behind this is to protect accused from police torture & to protect
fundamental right given under Article 20(3)

Judgement

The High Court observed that the medical evidence tendered by PW2 fails to prove the
homicidal death of deceased as a result of asphyxia due to strangulation. Appraising the
evidence of PW.5, the High Court found that huge fence and bushes surround the place where
he was working and consequently, that the High Court held that the deposition of PW.5 to the
effect that he saw the deceased with A1 and A2 going towards Mavinahalla to be
unbelievable. Admittedly the place of occurrence is about 200 to 250 feet from his place of
work. He also stated that upon seeing him A1 or A2 had not tried to run away or even
attempted to do so. This circumstance was also held in favour of the accused. The High Court
impeaches the credibility of alleged extra-judicial confession of accused before PW3. PW5
has not stated about the extra-judicial confession nor has it a found a place in the Ex. P 1
prepared by PW1 upon knowing of the incident from PW3. Thus the extra-judicial confession
was founded to be a concocted piece of evidence. Lastly, the High Court found that it is
difficult to believe the evidence of PW6, bus conductor. The High Court reasoned that, it is
difficult to identify the bus ticket without the aid of trip sheet or any other reliable sources. In
these circumstances, the High Court set aside the conviction by the Trial Court.

In that view of the matter, acquittal of the respondents by the High Court does not call for any
interference. The appeal stands dismissed accordingly.

Value of retracted confession- A retracted confession is a statement made by an

accused person before the trial begins by which he admits to have committed the offence but

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which he repudiates at the trial. After the commission of a serious offence some police officer
makes investigation into the matter, examines witnesses and the accused. If in his opinion the
accused is proved to have committed the offence, he submits a report to a magistrate having
jurisdiction in the matter. The court takes evidence and examines the accused. If during the
investigation, the accused on being examined by the police officer is willing to admit the guilt
the police officer sends the accused to some magistrate for recording his statement. The
magistrate after being satisfied that the accused admits in his statement to have committed the
offence this recorded statement by the magistrate may be proved at the trial. When the trial
begins the accused on being asked as to whether he committed the crime he may say that he
did not commit the crime. The question may again be put to him as to whether he made
statement before the magistrate during the investigation confessing the guilt. He may deny to
have made the statement at all or he may say that he made that statement due to undue
influence of the police. In this case the confession made by the accused to the magistrate
before the trial begins is called retracted confession.

It is unsafe to base the conviction on a retracted confession unless it is corroborated by

trustworthy evidence. There is no definite law that a retracted confession cannot be the basis
of the conviction but it has been laid down as a rule of practice and prudence not to rely on
retracted confession unless corroborated. Courts have convicted persons on retracted
confession when they have been of the opinion that the confession when it was made was
voluntary or consistent and true but the real rule of law about the retracted confession is
where the retracted confession is the sole evidence it can be of little value specially when
made during the competition for a pardon which sometimes occurs where a number of
persons are suspected of an offence,. It very often happens that a number of persons are
accused of murder or dacoity or of any other offence. The person in charge of the
investigation falling on direct and independent evidence chooses some of the accused to
admit the guilt on the promise of making him a witness in the case. Instances are not rare
when a young man is made to admit some guilt due to pressure or fear.

It is really very strange for an accused to confess before the investigation authority that he has
committed the murder. That statement if made without any pressure, fear or hope must be
either due to the remorse or godly fear or it is so because the accused is as truthful as Harish
Chandra and Yudhisthir. If this is so and if the statement was made because the winess was
remorseful or because he made the confession due to fear of god or because he was truthful
there is no reason as to why he resiles from that statement when he is put to trial. Due to this
suspicion a retracted confession can always be suspected to have been extracted by pressure,
undue influence, inducement or threat by some person in authority.

Proof of judicial confession- Under section 80 of Evidence Act a confession recorded by the
magistrate according to law shall be presumed to be genuine. It is enough if the recorded
judicial confession is filed before the court. It is not necessary to examine the magistrate who
recorded it to prove the confession. But the identity of the accused has to be proved.

Proof of extra-judicial confession- extra-judicial confession may be in writing or oral. In the

case of a written confession the writing itself will be the best evidence but if it is not available
or is lost the person before whom the confession was made be produced to depose that the
accused made the statement before him. When the confession has not been recorded, person

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or persons before whom the accused made the statement should be produced before the court
and they should prove the statement made by the accused.

Confession to Police:-

Section25- Confession to Police Officer not to be proved.

No confession made to a police officer shall be proved as against a person accused of any
offence.

Reasons for exclusion of confession to police-If confessions to police were allowed to be

proved in evidence, the police would torture the accused and thus force him to confess to a
crime which he might not have a committed. A confession so obtained would naturally be
unreliable. It would not be voluntary. Such a confession will be irrelevant whatever may be
its form, direct, express, implied or inferred from conduct. The reasons for which this policy
was adopted when the act was passed in 1872 are probably still valid.

In Dagdu v. State of Maharashtra 10 , A.I.R. 1977 S.C. 1579, supreme court noted:
The archaic attempt to secure confessions by hook or by crook seems to be the be-all and
end-all of the police investigation. The police should remember that confession may not
always be a short-cut to solution. Instead of trying to start from a confession they should
strive to arrive at it. Else, when they are busy on their short-route to success, good evidence
may disappear due to inattention to real clues. Once a confession is obtained, there is often
flagging of zeal for a full and through investigation with a view to establish the case de hors
the confession, later, being inadmissible for one reason or other, the case fundles in the court.

Effect of Police Presence:-

The mere presence of the policeman should not have this effect. Where the confession is
being given to someone else and the policeman is only casually present and overhears it that
will not destroy the voluntary nature of the confession. But where that person is a secret agent
of the police deputed for the very purpose of receiving a confession, it will suffer from
blemish of being a confession to police.

In a rather unusual case, the accused left a letter recording his confession near the dead body
of his victim with the avowed object that it should be discovered by the police, the supreme
court held the confession to be relevant. There was not even the shadow of a policeman when
the letter was being written, and planted.

Exclusion of Confessional Statements only:-

This principle of exclusion applies only to statement which amount to a confession. If a
statement falls short of a confession, that is, it doesnt admit the guilt in terms or
sustainability all the facts which constitute the offence, it will be admissible even if made to a
policeman, for example, the statement of an accused to the police that he witnessed the
10
AIR1977 S.C 1579

15 | P a g e
murderer in question. The statement being not a confession was received in evidence against
him, as showing his presence on the spot.

Statements during Investigation and before Accusation:-

A confessional statement made by a person to the police even before he is accused of any
offence is equally irrelevant. The section clearly says that such a statement cannot be proved
against any person accused of any offence. This means that even if the accusation is
subsequent to the statement, the statement cannot be proved.

Confessional FIR:-
Only that part of a confessional First Information Report is admissible which does not
amount to a confession or which comes under the scope of section 27. The non confessional
part of the FIR can be used as evidence against the accused as showing his conduct under
section-8.

Case Study
In case of Aghnoo Nagesia vs State of Bihar, 1966 AIR 119, 1966 SCR (1) 134, the
appellant was charged under section 302 of the Indian Penal Code for murdering his aunt,
Ratni, her daughter, Chamin, her son- law, Somra and Dilu, son of Somra. He was convicted
and sentenced to death by the Judicial Commissioner of Chotanagpur. The High Court of
Patna accepted the death reference confirmed and sentenced and dismissed the appeal
preferred by the appellant. The appellant filed the appeal in Supreme Court and Supreme
Court allowed the writ petition and set aside the conviction passed by the High Court.

Facts:-
The main facts due which the present writ petition had been filed by the appellant are as
follows:-

(1) That the accused on August 11, 1963 between 7 a.m. and 8 a.m. murdered Somra in a
forest known as Dungijharan Hills.
(2) That after murdering Somra , accused murdered Chamin in Kesari Garha field.
(3) That after that, he murdered Ratni and Dilu in the house of Ratni at village Jamtoli.
(4) That accused himself on August 11, 1963 at 3:15 pm went to the Police Station and
lodged the first information report.
(5) That the first information report was reduced to writing by the officer-in-charge, sub-
Inspector H.P. Chaudhary, and the appellant affixed his left thumb impression.
(6) That the sub-Inspector took the cognizance of the offence and arrested the appellant.
(7) That on next day the police officer and the appellant went to the places where he had
concealed the dead bodies and murder weapon.

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The first Information report reads as follows:
My name is Aghnoo Nagesia. (1) My fathers name is Lodhi Nagesia. I am a resident of
Lotwa, Tola Jamtoli, Thana Palkot, District Ranchi. Today, Sunday, date not known, at
about 3 p.m. I having come to the P.S. make statement before you the S.I. of Police (2)
that on account of my Barima (aunt) Mussammat having given away her property to her
daughter and son-in-law quarrels and troubles have been occurring among us. My Barima
has no son and she is a widow. Hence on her death we shall be owners of her lands and
properties and daughter and son-in- law of Barima shall have no right to them. She lives
separate from us, and lives in her house with her daughter and son-in-law and I live with
my brother separately in my house. Our lands are separate from the time of our father. (3)
Today in the morning at about 7-8 a.m. I had -one with a tangi to Duni Jharan Pahar to
cut shrubs for fencing. I found Somra sitting alone there who was grazing cattle there. (4)
Seeing him I got enraged and dealt him a tangi blow on the fill (calf) of right leg,
whereby he toppled down on the ground. Thereupon I dealt him several Chheo (blows) on
the head and the face, with the result that he became speechless and died. At that time
there was none near about on that Pahar. (5) Thereafter I came to the Kesari Garu field
where "Somra's wife Chamin was weeding out grass in the field. (6) 1 struck her also all
on a sudden on the head with the said tangi whereby she dropped down on the ground and
died then and there. (7) Thereafter I dragged her to an adjoining field and laid her in a
ditch to the north of it and covered her body with Gongu (Pala ke Chhata) so that people
might not see her. There was no person then at that place also. (8) Thereafter I armed with
that tangi went to the house of my Barima to kill her. When I reached there, I found that
she was sitting near the hearth which was burning. (9) Reaching there all on a sudden I
began to strike her on the head with tangi whereupon she dropped down dead at that very
place. (10) Near her was Somra's son aged about 3 -4 years. (11) I also struck him with
the tangi. He also fell down and died. (12) I finished the line of my Barima so that no one
could take share in her properties. (13) 1 hid the tangi in the jhari of my Barima's house.
(14) Later on I narrated the occurrence to my chacha (father's brother) Lerha that I killed
the aforesaid four persons with tangi. After sometime (15) I started for the P.S. to lodge
information and reaching the P.S. T make this statement before you. (16) My Barima had
all along been quarrelling like a Murukh (foolish woman) and being vexed, I did so. (17)
All the dead bodies and the tangi would be lying in those places. I can point them out. ( 1
8) This is my statement. I got it read over to me and finding it correct, I affixed my left
thumb-impression."

Issue Raised:-
(1) Whether the statement or any portion of the statement is admissible in evidence.

17 | P a g e
Arguments in favor of Petitioner:- The contention raised by the appellant was
that the entire statement is a confession made to a police officer and is not provable
against the appellant, having regard to S. 25 of the Indian Evidence Act, 1872.

Section 25 of the Indian Evidence Act reads as follows:

25. Confession to police officer not to be proved.No confession made to a police
officer1, shall be proved as against a person accused of any offence.

Arguments in favor of Respondent:-

The contention raised by the respondent was that S. 25 protects only those portions of the
statement which disclose the killings by the appellant and the rest of the statement is not
protected by s. 25.

Judgment:-
In this case the judgment has been given by Justice BACHAWAT, R.S., SUBBARAO,
K., DAYAL, RAGHUBAR. The judgment is marvellous in itself.

The Honble judges said that a confession may consist of several parts and may reveal not
only the actual commission of the crime but also the motive, the preparation, the
opportunity, the provocation, the weapons used, the intention, the concealment of the
weapon and the subsequent conduct of the accused. If the confession is tainted, the taint
attaches to each part of it. It is not permissible in law to separate one part and to admit it
in evidence as a non-confessional statement. Each part discloses some incriminating fact,
i.e., some fact which by itself or along with other admitted or proved facts suggests the
inference that the accused committed the crime, and though each part taken singly may
not amount to a confession, each of them being part of a confessional statement partakes
of the character of a confession. If a statement contains an admission of an offence, not
only that admission but also, every other admission of an incriminating fact contained in
the statement is part of the confession.

The coram said that the High Court divided the statement into 18 parts. Parts 1, 15 and
18 show that the appellant went to the police station to make the report. Parts 2 and 16
show his motive for the murders. Parts 3, 5, 8 and 10 disclose the movements and
opportunities of the appellant before the murders. Part 8 also discloses his intention. Parts
4, 6, 9 and 11 disclose that the appellant killed the four persons. Part 12 discloses the
killing and the motive. Parts 7, 13 and 17 disclose concealment of a dead body and a tangi
and his ability to point out places where the dead bodies and the tangi were lying. Part 14
discloses the previous confession by the appellant. Broadly speaking, the High Court
admitted in evidence parts 1, 2, 3, 5, 7, 8, 10, 13, 15, 16, 17 and confirmed the death

18 | P a g e
 sentence. But it is wrong. Because we cannot divide the confession into various parts
whether it contains both exculpatory statement and inculpatory statements.

The court said that section 25 and 26 deals with confession and according to section 25 of
IEA a confession made to a police officer under any circumstances is not admissible in
evidence against the accused. It covers a confession made when he was free and not in
police custody, as also a confession made before any investigation has begun. The
expression "accused of any offence" covers a person accused of an offence at the trial
whether or not he was accused of the offence when he made the confession. And
according to section 26 of IEA proof against any person of a confession made by him in
the custody of a police officer, unless it is made in the immediate presence of a
Magistrate is prohibited. So the court said that we cannot accept the confession as
evidence because it was made before the police officer.

The court said that Section 27 applies only to information received from a person accused of
an offence in the custody of a police officer. In this case the appellant was constructively in
police custody. So section 27 applies. So the dead bodies and weapon are admissible. But
these evidences are not sufficient to convict the appellant of the offenses under s. 302 of the
Indian Penal Code.

In the result, the appeal is allowed, the conviction and sentence passed by the Courts below
are set aside, and the appellant is directed to be set at liberty forthwith. Appeal allowed.

Special Legislation:-
A special legislation may change the system of excluding police confessions. For example,
under the Territorists and Disruptive Activities(prevention) Act, 1987, (S15) confessional
statements were not excluded from evidence on grounds that the persons making them were
in police custody. The court said in another case that section 15 was an important departure
from the ordinary law and must receive that interpretation which would achieve the object of
that provision was that a confession recorded under S.15 of TADA was a substantive piece of
evidence and could be used against a co-accused also.

Section 26-
Confession By Accused While In Custody Of Police Not To Be Proved
Against,Him.
No confession made by any person whilst he is in the custody of a police officer, unless it is
made in the immediate presence of a Magistrate, shall be proved as against such person.
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:-

19 | P a g e
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 Pradesh11, 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 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. Lester12, the accused was being taken in a tonga 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

11
AIR 1990 P-2140, 1990 SCR Supl. (1) 105
12
(2008) QCA 354-190 A Crim R 468

20 | P a g e
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 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 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.

Section 27- How Much Of Information Received From Accused May Be

Proved:-
Provided that, when any fact is deposed to as discovered in consequence of information
received from a person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered may be proved.

Principle- this section of the act is founded on the principle that if the confession of the
accused is supported by the discovery of a fact then it may be presumed to be true and not to
have been extracted. It comes into operation only-
If and when certain facts are deposed to as discovered in consequence of information
received from an accused person in police custody, and
If the information relates distinctly to the fact discovered.

This section is based on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the information was true and
accordingly can be safely allowed to be given in evidence. But clearly the extent of the
information admissible must depend on the exact nature of the fact discovered to which such
information is required to relate

Fact Discovered :-
In case ,
State (NCT)of delhi v. Navjot Sandhu13
Discovery of fact means something more than the thing produced . the discovery of fact
arise by reason of the fact that the information given by accused exhibited his knowledge or
mental consciousness. Only the information which distinctly related to discovery is provable.
The rest of the information has to be excluded .The word distinctly means

13
(2005)11s.c.c.600

21 | P a g e
directly,undubitably,strictly. The word has been advisedly used to limit and define the
scope of provable information .the phrase refer to that part of the information which is the
direct and immediate cause of the discovery. Only such information is admissible whether it
amount to confession or not.
The fact discovered on the basis of information supplied may qualify for relevancy if it is the
immediate and proximate cause of the information. Where the discovery was due to the
knowledge gained by police from other source, the statement of the accused was not relevant
under section 27.but his conduct in pointing out the shope and proprietor was revelant under
section 8.

Case Study

In Pandu Rang Kallu Patil v. State of Maharashtra14, it was held by Supreme Court that
section 27 of evidence act was enacted as proviso to. The provisions of sections of Section 25
and 26, which imposed a complete ban on admissibility of any confession made by accused
either to police or at any one while in police custody. Nonetheless the ban would be lifted if
the statement is distinctly related to discovery of facts. The object of making provision in
section 27 was to permit a certain portion of statement made by an accused to Police Officer
admissible in evidence whether or not such statement is confessional or non confessional.

FACTS

There was a dispute between Al and the father of the deceased over some landed property.
The said dispute made them enemies. This is the background of the occurrence. While
deceased Ramdas, and his brother PW2 Narayan were proceeding to their village for
taking lunch around 1.30 P.M. on 29.6.92 the assailants went in a jeep and stopped just
near the place of occurrence. All the assailants alighted from the jeep. Al, A2 and A3 had
a gun each with them. A4 and A6 had either a knife or a sword with them. It is
unnecessary to mention about the weapons possessed by other persons. The assailants who
were armed with guns opened fire at the deceased as well as PW2. The deceased was then
a few feet ahead of PW2 and both were running up presumably to escape from the chasing
assailants. Both of them sustained serious gun shot injuries, though PW2 did not succumb
to them. But the deceased fell down at the spot and died. Seeing this the assailants took to
their heals leaving the jeep remaining at the spot as a mute remnant of the acts done by
them.

14
APPEAL (CRL.) 194 OF 2000

22 | P a g e
ISSUES RAISED
While dealing with the facts of this case we may point out that the trial court convicted Al-
Shankar Gopal Patil and A3-Balaram Waman Patil under Section 302 of the 1PC while A2-
Nazir Babu Sheikh was convicted only under Section 307 of the IPC. Trial Court acquitted
A4-Pandurang Kalu Patil and A6-Janardhan Shaligram Patil. But the High Court in the
impugned judgment reversed the acquittal of A4 and A6 and convicted them under Section
326 read withSection 149 of the IPC and sentenced them to rigorous imprisonment for ten
years. The High Court confirmed the conviction and sentence passed on A l and A3 but in the
matter of A2 - Nazir Babu Sheikh, the High Court raised up the conviction from Section
307 to Section 302 read withSection 149 of the IPC and sentenced him to imprisonment for
life. The convicted A l and A3 have filed special leave petitions in this Court but they were
dismissed by this Court.
LEGAL ASPECT
While delivering judgment in two connected criminal appeals relating to the murder of one
Ramdas, the Division Bench of the Bombay High Court (D.K. Trivedi and DG Deshpande,
JJ) proceeded to consider the legal proposition propounded in Pulikuri Kottaya and held thus
:-
"with respect we are unable to agree with the interpretation of the Privy Council of Section
27 not because it does not lay down correct Law but because it has failed to take into
consideration some material aspect of Section 27 of the Evidence Act.......The observation of
the Privy Council that it is fallacious to treat the "fact discovered within the section as
equivalent to the "object produced", in our humble and respectful opinion is not based on
proper construction of the word 'fact deposed to' used in Section 27. Because the definition of
the fact given in Section 3 of the Evidence Act is not considered at all. The object discovered
is a fact, and therefore, when a witness is deposing in the Court and deposes to a fact, it
means he could and he should depose about the object discovered". The legal proposition
adumbrated in Pulikuri Kottaya has been considered and tested by this Court, time and again,
and on all such occasions this Court has only reiterated the said principle with approval
(vide Jaffar Hussain Dastagir v. State of Maharashtra, [1969] 2 SCC 872; AIR (1970) SC
1788, [1983] 2 SCC 330, [1995] 4 SCC 392; Shamshul Kanwar v. State of U.P., [1995] 4
SCC 430 and State of Rajasthan v. Bhup Singh, [1997] 10 SCC 675 Para 15 and in the last
cited decision this Court, while again re-affirming the ratio in Pulikuri Kottaya has said thus
:-

23 | P a g e
"The ratio therein (Kottaya) has become locus classicus and even the lapse of half-a-century
after its pronouncement has not eroded its forensic worth."
Even the recent decision in State of Maharashtra v. Damn, [2000] 6 SCC 269 this Court
followed Pulikuri Kottaya with approval. The fallacy committed by the Division Bench as per
the impugned judgment is possibly on account of truncating the word "fact" in Section 27 of
the Evidence Act from the adjoining word "discovered". The essence of Section 27 is that it
was enacted as a proviso to the two preceding Sections (see Sec. 25 and 26) which imposed a
complete ban on the admissibility of any confession made by an accused either to the police
or to any one while the accused is in police custody. The object of making a provision
in Section 27 was to permit a certain portion of the statement made by an accused to a police
officer admissible in evidence whether or not such statement is confessional or non-
confessional. Nonetheless he ban against admissibility would stand lifted if the statement
distinctly related to a discovery of fact. A fact can be discovered by the police (investigating)
officer) pursuant to an information elicited from the accused if such disclosure was followed
by one or more of a variety of causes. Recovery of an object is only one such cause.
Recovery, or even production of object by itself need not necessarily result in discovery of a
fact. That is why way Sir John Beaumont said in Pulikuri Kottaya that "it is fallacious to treat
the fact discovered in the section as equivalent to the object produced". The following
sentence of the learned law lord in the said decision, though terse, is eloquent in conveying
the message highlighting the pith of the ratio.
"Information supplied by the person in custody that 'I will produce a knife concealed in the
roof of my house' does not lead to the discovery of a knife; knives were discovered many
years ago. It leads to the discovery of the fact that a knife is concealed in the house of the
informant to his knowledge and if the knife is proved to have been used in the commission of
the offence, the fact discovered is very relevant."
(emphasis supplied) Learned Judges in the impugned judgment laboured to show that the
word "fact" can envelop an object also, and tried to project that the said aspect has not been
taken into account by their Lordships of the Privy Council. Here again we may repeat that the
Division Bench had erred by not taking the import of the collocation of the words "discovery
of a fact" as envisaged in Section 17. No doubt in a given case an object could also be a fact,
but discovery of a fact cannot be equated with recovery of the object though the latter may
help in the final shape of what exactly was the fact discovered pursuant to the information
elicited from the accused. Thus the labour made in the impugned judgment by giving

24 | P a g e
emphasis to the word "fact" disjuncted from the word "discovery" rendered the exercise in
vain. Ratio in Pulikuri Kottaya thus remains unscathed.
It is unfortunate that learned judges of the Division Bench of the Bombay High Court, in the
impugned judgment, have chosen to set a locus classicus at nought without reference to any
of the catena of judicial pronouncements rendered by High Court as well as the Apex Court
pertaining to the ratio in that decision. Nonetheless the guidelines laid down by the Division
Bench of the impugned judgment did not call for any interference as they related to the
manner of recording the evidence in the trial court. However, we feel that guideline number
'F' (mentioned in the impugned judgment) seems to be unnecessary and would only cause
additional workload for the trial courts
ARGUMENTS:
The prosecution examined four persons as eye witnesses, they are PW2 to PW5. The trial
court and the High Court placed reliance on the testimony of PW2 Narayan and PW3 Janu
Bhoir.
We have absolutely no doubt that PW2 Narayan who was injured and seen the occurrence
and hence he was competent to say who were all the assailants. He also vouchsafed the
presence of PW3 Janu Bhoir. We are not disposed to disbelieve the testimony of those two
witnesses as they were relied upon by the two Courts.
Mr. SR Chitnis, learned senior counsel for the appellants contended that the version of the
eye witnesses is inconsistent with the injuries noted by the doctors. According to the version
of the eye witnesses the deceased was running forward while the assailants shot him from
behind but the fire arm injuries sustained by the deceased could well have been shot face-to-
face. This aspect is not enough to doubt the correctness of the testimony of the eye witnesses,
for, it is quite possible as per the reflex action the running deceased would have turned back
either to see whether he has gone out of the range of penil or to know the nearness of it. The
mere fact that PW2 eye witness said that the deceased was running forward and the assailants
shot them from behind cannot rule but the possibility of such twirling of the deceased when
the guns were fired.
Learned counsel then contended that the High Court had gone wrong in relying on the
evidence of PW18-Dy. S.P. who said that when A2 was arrested and interrogated a gun was
disintered pursuant to the information supplied by him. It is on the said aspect that the
Division Bench of the High Court considered the ratio in Pulikuri Kottaya. What PW 18 said
in the Court is that the statement made by A2 had been recorded in Exh. 91 memorandum.

25 | P a g e
We have noticed from the said memorandum the following statement of A2 as recorded
therein :-
"I have kept the fire arm concealed behind the old house in a heap of wood".
The fact discovered by PW 18 is certainly not the gun. The fact discovered is that A2 had
concealed the gun (article no. 5/2) behind the old house under a heap of wood. It was the
same gun with which A2 had fired at PW2 and that aspect has been proved with the help of
other evidence.
Mr. SR Chitnis, made an alternative endeavour to show that the act committed by A2 can at
the worst amount only to the offence under Section 307 of the IPC because PW2 had not
succumbed to the injuries. When A2 along with other assailants alighted from the jeep
together and chased the deceased and PW2 together and fired their lethal weapons together,
the common intention shared by A2 with other assailants (Al and A3) looms large, albeit the
fact that the bullet of his fire arm could reach only upto the body of PW2 who was not
destined to die. What A1 and A3 had done was certainly with the common intention shared
by A2-Nazir Babu also. Of course, the High Court has convicted him under Section 302 with
the help of Section 149 of the IPC. That error has to be corrected by us. We, therefore,
confirm the conviction and sentence passed on A2-Nazir Babu Sheikh under Section
302 with the aid of 34 of the IPC and dismiss Cr. Appeal No. 189/2000.
But the position of A4 and A6 is different. Though they had knives with them they had not
chosen to do anything. Even after the deceased fell down they did not move forward to inflict
even a scratch on him. They did not do any harm to PW2. There is nothing to indicate that
they knew about the design of the other assailants. They were acquitted by the trial court. The
view taken by the trial court on the facts of the case is reasonable and hence it was
impermissible for the appellate court to interfere with the acquittal.

JUDGEMENT
The court, therefore, allow Crl. Appeal No. 194/2000 and set aside the conviction and
sentence passed on A4-Pandurang and A6-Janardhan Shaligram Patil. They are acquitted.
Their bail bond will stand discharged. (A copy of this judgment will be forwarded to the
Registrar of the Bombay High Court as copies of the impugned judgment were directed to be
circulated to all the sessions judges under Bombay High Court. Now it is necessary to bring
this also to the notice of all those sessions judges).

26 | P a g e
Scope- section 24, 25 and 26 of the Evidence Act exclude certain confessions. Section 24
lays down that if a confession appears to have been caused by threat, promise or inducement
from some man in authority it will be irrelevant and cannot be proved against the
confessioner. Section 25 excludes a confession made to a police officer. Section 26 lays down
that if a person while in custody of a policeman, confesses his guilt to any other person not
being a Magistrate, his statement will not be proved against him.

Section 27 lays down that when at any trial, evidence is led to the effect that some fact was
discovered in consequence of the information given by the accused of an offence in custody
of the police officer, so much of the information as relates to the facts discovered by that
information, may be proved irrespective of the facts discovered by that information, may be
proved irrespective of the facts whether that information amounts to confession or not.

Requirements Under The Section- the conditions necessary for the application of section 27
are:
1. The fact must have been discovered in the consequence of the information received from
the accused.

2. The person giving the information must be accused of an offence.

3. He must be in custody of a police officer.
4. That portion only of the information which relates distinctly to the fact discovered can be
proved. The rest is inadmissible.

5. Before the statement is proved, somebody must depose that articles were discovered in
consequence of the information received from the accused. In the example given above,
before the statement of the accused could be proved, somebody, such a sub-inspector, must
depose that in consequence of the given information given by the accused, some facts were
discovered.

6. The fact discovered must be a relevant fact, that is, to say it must relate to the commission
of the crime in question.

In Suresh Chandra Bahri v. State of Bihar15, it is the discovery and the seizure of articles
used in wrapping the dead body and the pieces of Sari belonging to the deceased was made at
the instance of one accused. Articles recovered were neither visible nor accessible to the
people but were hidden under the ground. No public witness was examined by the
prosecution in this behalf. However, the evidence of Investigation Officer did not suffer from
any doubt or infirmity. Articles discovered were duly identified by the witness. It was held
that in these circumstances, failure of Investigating Officer to record the disclosure of
statement was not fatal.

15
1994 AIR 2420, 1995 SCC Supl. (1) 80

27 | P a g e
In State of Maharashtra v. Bharat Chagan Lal Raghani16, it was held by Supreme Court
that, the fact that seized weapons were displayed by police in press conference was not a
ground to disbelieve the factum of recovery.

Section 28- Confession made after Removal of Impression Caused by

Inducement, threat or promise, Relevant:-
If such a confession as is referred to in section 24 is made after the impression caused by any
such inducement, threat or promise has, in the opinion of the court, been fully removed, it is
relevant.
Confession After Removal Of Threat Or Promise- under section 24 we have seen that if the
opinion of a court a confession seems to have been caused by any inducement, threat or
promise having reference to the charge and proceeding from a person in authority, it is
irrelevant and cannot be proved even against a person making the confession.

16
APPEAL (CRL.) 628 OF 1998

28 | P a g e
Section 28 provides that if there is inducement, threat or promise given to the accused in
order to obtain confession of guilt from him but the confession is made after the impression
caused by any such inducement, threat or promise has, in the opinion of the court been fully
removed, the confession will be relevant becomes pre and voluntary.

It must be borne in mind that there must be strong and cogent evidence that the influence of
the inducement has really ceased. A female servant was suspected of stealing money. Her
mistress on Monday told her that she would forgive her if she told the truth. On Tuesday she
was taken before a Magistrate and as no one grave any evidence against her she was left off.
On Wednesday she was again arrested. The superintendent of Police went with her mistress
into Bridewell and told her in presence of her mistress that she was not bound to say
anything unless she liked and that if she had anything to say, her mistress would hear her.
He did not tell her that of she made a statement it might be given in evidence against her. The
prisoner then made a statement it might be given in evidence against herm the prisoner then
made a statement confessing the guilt. It was held that this evidence was not admissible in
evidence as the promise of the mistress must be considered as still operating on the prisoners
mind at the time of the statement.

Section 29:- Confession otherwise Relevant not be become Irrelevant

because of Promise of secrecy etc:-
In such a confession is otherwise relevant, it does not become irrelevant merely because it
was made under a promise of secrecy, or in consequence of deception practiced on the
accused person for the purpose of obtaining it, or when he was drunk, or because it was made
in answer to question which he need not have answered, whatever may have been the form of
those questions, because he was not warned that he was not bound to make such confession,
and that evidence if it might be given against him.

CONFESSION ON PROMISE OF SECRECY, ETC-

Section 29 lays down that if a confession is relevant, that is, if it is not excluded from being
proved by any other provision on Indian Evidence Act, it cannot be relevant if it was taken
From the accused by :

1. Giving him promise of secrecy, or

2 By deceiving him, or
3 When he was drunk, or
4 Because it was made clear in answer to question which he need not have answered, or
because no warning was given that he was not bound to say anything and that whatever he
will state will be used against him.

Section 24 lays down that a confession which is the outcome of inducement, threat or
promise from a person in authority would not be relevant. Section 25 lays down that a
confession to a police officer is irrelevant. Section 26 excludes the statement of an accused in

29 | P a g e
a police custody to any person other than a Magistrate. Section 29 lays down that if a
confession is not excluded by Sections 24, 25 or 29 it will not be excluded on the ground of
promise of secrecy or of deception or of being drunk, or of being made in answer to question
or without warning that it will be used against him in evidence.
Section 29 assumes that there is no bar to the admissibility of the confession in question
arising from any of the earlier provision, viz, section 24 to 26 and it then proceeds to the
invalidate or negative other positive objections or bars that may be raised against the
admissibility.

Generally when a man is under intoxication he confesses the guilt. If confessional statement
is made by some accused person while he was drunk, it will be admissible if he had not
become quite senseless for the very reason that it has not been obtained by inducement or
threat now was it made while he was in custody of a police officer.
When a statement is made voluntarily without inducement, threat or promise from a man in
authority; and when it is not made to a police officer, it is admissible notwithstanding the fact
that the person who took the confessional statement did not warn the accused that he was
bound to make the statement and if he did so, it may be used in evidence against him and
upon that he may be convicted.

Want of Warning: a voluntary confession is admissible, though it does not appear that the
prisoner was warned, and even though it appears on the contrary that he was not so warned.

Section 30;- Consideration of proved confession affecting person making it

and others jointly under trial for the same offence.
When more persons than one are being tried jointly for the same offence and a confession
made by one such persons affecting himself and some other such persons is proved, the court
may take into consideration such confession as against such other person as well as against
the person who makes such confession.

Principle: when more persons than one are jointly tried for the same offence, the confession
made by one of them, if admissible in evidence, should be taken into consideration against all
the accused, and not against the person who alone made it. It appears to be very strange that
the confession of one person is to be taken into consideration against another. Where the
confession of one accused is proved at the trial, the other accused persons have no other
opportunity to cross examine him. It is opposed to the principle of jurisprudence to use a
statement against a person without giving him the opportunity to cross examine the person
making the statement. This section is an exception to the rule that the confession of one
person is entirely admissible against the other.

In Kashmira Singh v. State of MP 17, the accused Kashmira who was an Assistant Food
Procurement Inspector, his services along with the another food inspector were terminated on

17
1952 AIR 159, 1952 SCR 526

30 | P a g e
a report of the food officer when they were getting the rice polished in a rice mill. Kashmira
was heard twice saying that he would teach a lesson to the food officer. After a few months
the son of the food officer was found missing and his body was found in a well. Kashmira,
Gurudayal brother of Kashmira, Prithipal son of Gurudayal and one Gurubachan, a rickshaw
puller in this case were tried of conspiracy and killing the child. The prosecution story was
that Prirthipal led the child, when he was playing near the Gurudwara, for some distance and
then the child was taken on the cycle by Kashmira to a house where he was murdered.
According to the judgment of the SC Guruibachan was not a rickshaw puller by profession
and the rickshaw was hired only for that night for the disposal of the body of the deceased.

Hence before the confession of one accused may be taken into consideration against others, it
has to be shown that:

1) The person confessing and the others are being tried jointly.
2) They are being tried for the same offence.
3) The confession is affecting the confessioner and the others

31 | P a g e
 Recent cases
Mohammad Ajmal Mohammad Amir kasab Alias Abu Mujahid v. State of
Maharashtra18
Fact :-

The appellant, Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid (hereinafter
referred to as the appellant or as Kasab), who is a Pakistani national, has earned for
himself five death penalties and an equal number of life terms in prison for committing
multiple crimes of a horrendous kind in this country.

Some of the major charges against him were: conspiracy to wage war against the Government
of India; collecting arms with the intention of waging war against the Government of India;
waging and abetting the waging of war against the Government of India; commission of
terrorist acts; criminal conspiracy to commit murder; criminal conspiracy, common intention
and abetment to commit murder; committing murder of a number of persons; attempt to
murder with common intention; criminal conspiracy and abetment; abduction for murder;
robbery/dacoity with an attempt to cause death or grievous hurt; and causing explosions
punishable under the Explosive Substance Act, 1908. He was found guilty of all these
charges besides many others and was awarded the death sentence on five counts, life-
sentence on five other counts, as well as a number of relatively lighter sentences of
imprisonment for the other offences.

The case of the prosecution is based, of course, on investigations by the police, but a good
deal of it also comes from the confessional statement of the appellant recorded under Section
164 of the CrPC. The confession of the appellant may be broadly divided into two parts, one
relating to the conspiracy, planning and preparation for the attack, and the other relating to
the actual attack on Mumbai, in execution of the conspiracy of which the appellant along with
his buddia[3], the accomplice Abu Ismail, was a part.

So far as the attack on Mumbai is concerned, every statement made by the appellant is
corroborated over and over again by objective findings and evidences gathered by the
prosecution. But the conspiracy and the preparation for the attack took place in Pakistan and,
therefore, it was impossible for any agency of this country to make investigations in regard to
that part of the case. Nevertheless, the investigators have been able to gather extensive
material to corroborate even that part of the appellants confession.

It would thus be convenient to present the case of the prosecution by beginning with the appellants
confessional statement.

THE RECORDING OF THE CONFESSIONAL STATEMENT:

18
A.I.R.2012SC3565

32 | P a g e
The appellant was brought before the Chief Metropolitan Magistrate, Mumbai, to make his
confessional statement. The Chief Metropolitan Magistrate referred him to Mrs. Sawant-
Wagule, Addl. Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, before whom
he was presented for recording his confessional statement .

Mrs. Sawant Wagule proceeded to take his statement very slowly and with great
circumspection. First of all, she had the appellant completely insulated from the police. She
explained to him that from that point he was in her custody and not in the custody of the
police.

According to section 25 or section 26 of Indian Evidence act ,1872 She asked him whether
he was ill-treated or abused by the police in any manner and why he wanted to make the
confessional statement. To her first question the appellant replied in the negative, and as for
the reasons for him making a confession he said he would explain everything when his
statement was recorded in detail. The magistrate further satisfied herself that the appellant
was willing to make the confessional statement voluntarily and not under any pressure,
coercion or allurement by the police or anyone else.

Nonetheless, she did not take his statement on that day but told him that she wanted him to
reflect further on the matter, for which purpose she was giving him 24 hours time. She then
remanded him to judicial custody where he was not accessible to the police or any other
agency.

On the next day, The appellant had no difficulty in following or speaking in Hindi; thus, the
interaction between the magistrate and the appellant took place, in question and answer form,
in simple, everyday spoken Hindi. The magistrate, having satisfied herself that the police had
no contact with the appellant in the past 24 hours, began by telling the appellant that she had
no concern with the offences for which he was arrested or any connection with the police that
had arrested him. She explained to him that he was under no compulsion to make the
confessional statement and further, that whether he made the confessional statement or not,
he would not be handed back to the police. She confirmed once again that the appellant
wished to make the statement of his own volition and not under any influence.

She asked him why was he brought to her and in reply he said that he wanted to make a
confessional statement. She asked for which offence he wanted to make confession. He
replied that on November 26, 2008, he and his accomplices made a Fidayeen attack on
Mumbai city and he wanted to make a confession about the attack and the conspiracy behind
it. She asked when he felt like making a confession. He told her that the thought of making
the confession came to him when he was arrested by the police. He added that he had
absolutely no regret for whatever he had done. He wanted to make the confession to set an
example for others to become Fidayeen like him and follow him in his deeds.

The magistrate cautioned him by saying that he should make the statement only if he wished
to do so. She further cautioned him by saying that any confessional statement made by him
would be taken down in writing and it would be used as evidence against him and that might
lead to his conviction. The appellant said he was aware of the consequences.

The magistrate again asked him whether the police had given any inducement to him to
make the confessional statement, such as by offering to make him an approver.(section

33 | P a g e
28, Indian Evidence) He replied in the negative. She then asked if he needed an advocate
while making the confession. Once again, he answered in the negative.

At another stage of proceeding ,she once again asked the appellant why he wished to make
the confessional statement. He replied that he wanted to set an example for another to follow
the confessional statement from any position of weakness or resignation or out of remorse.
He was hero in own eyes but a devil for humanity and the confessional statement made by
him was voluntary and truthful.

Judgement

The judge first talked about Kasab's offence of around 66 deaths under Section 302 of the
Indian Penal Code. He said he found Kasab guilty of directly killing seven people that
included policeman Tukaram Ombale. The judge said Kasab's rifle's bullets tally with those
on these seven victims.

The court also said that 47 people were killed by Abu Ismail and Kasab. He says he
appreciated the prosecution's evidence in this case. The court was very appreciative of
photographer Sebastian D'Souza's testimony where he narrated how he took Kasab's picture
while he on the killing spree at CST station.

One of the most important things that judge said while delivering the judgment was that he
has accepted Kasab's statement made before a magistrate but he has also taken care to see
that corroborative evidence is taken into account.

Kasab has retracted his statement that narrated his journey from Pakistan to India and his
actions on 26/11. But the judge said Kasab's retraction is 'bald' without any reasons.

He said the law of prudence required that confessions of accused are corroborated by
evidence. The judge assured that he has taken care of it. The court's decision was heavily
depended on the confession of Kasab that was retracted.

The judge said he has accepted the evidence that Kasab was not at all under duress when he
made the confession before the magistrate after his arrest. The court found him guilty of
conspiracy charge also for which only circumstantial evidence exists.

The court has found Kasab guilty of deaths that occurred at other places also where he was
not present.

The judge made 196 points in the 85-page summary of his 1,522-page judgment. The judge
said, "These are crimes committed not by a normal criminal but by a committed man who
wanted to wage war against India.

34 | P a g e
Suresh vs State Of Haryana19

Facts of the case

Chander Bhan is a resident of village Sundawas, where there was a main contest between
Maha Singh and Dharmpal son of Nanak for the election of Sarpanch. Complainant Sobhat
Singh and Chander Bhan were supporting Maha Singh.

During the day time at about 10-11 AM a scuffle had taken place in which several shots
were fired and some persons were injured regarding which a case was registered against
Maha Singh and one Darya. Ultimately, they were challaned. Maha Singh had lost that
election. On 16.12.1994 at about 4.30 AM, the complainant along with Chander Bhan and
Dharam Pal were going to Chandigarh. When they reached 1 Kilometers from village then
they spotted a jeep coming from the opposite side.

One of the occupants Umed Singh son of Begraj raised Lalkara that enemies were going and
they be taught a lesson for helping Maha Singh. Dharampal and Umed Singh son of Beg Raj
and Dharambir son of Ram Lal alighted from the jeep.

Dharam Pal was armed with a pistol and he fired a shot hitting Chander Bhan in his stomach
and ran away. However, complainant Sobhat Singh saved himself by lying on the ground.
After the aforesaid persons went towards village, the complainant along with Dharam Pal
son of Nanak took Chander Bhan to the hospital, where he died.

On the aforesaid statement, a ruqa Ex.PE was sent to the Police Station on the basis of
which FIR Ex.PN was registered against Umed Singh, Dharam Pal and Dharambir. The case
was investigated by the Investigating Officer Bhim Singh who reached the spot but could not
trace anything connecting the commission of crime at the disclosed place of the occurrence
at the spot.

Thereafter Bhim Singh Investigating Officer went to the village, recorded statement of Smt.
Kamla who disclosed that on the intervening night of 15/16.12.1994 Sobhat Singh and
Dharm Pal had come to their house and took away Chander Bhan saying that Maha Singh
had lost the election and was involved in a criminal case, therefore, they were to falsely
implicate Dharam Pal Sarpanch by registering a counter case against him.

19
3 January, 2012

35 | P a g e
 Then the Investigating Officer, Bhim Singh during investigation, arrested Dharam Pal son of
Nanak, Suresh and Sobhat and they had also made extra-judicial confession regarding
commission of crime before Zile Singh Ex-Sarpanch who had produced them before the
police. The Investigating Officer also recorded disclosure statements Ex.PS, Ex.PT and
Ex.PU, formally arrested them and prepared site plan Ex.PX. Suresh also identified the place
(room) at Adarsh Nagar, Hisar, where they had allegedly committed murder of Chander
Bhan.

They also got recovered the pellets from the Khurli and .12 bore single barrel gun along with
two live cartridges. Since gun was owned by Lachhman Singh therefore, he was also
challaned under section 30 of the Arms Act. Similarly Suresh was challaned under section 25
of the Arms Act vide FIR No.743 dated 25.12.1994.

Thus, on completion of investigation accused were tried together in both the cases. Sobhat
Singh accused being dissatisfied from the investigation, filed a complaint against Dharam
Pal, Sarpanch and others which was also tried with the case. All the accused as referred to
above were charged accordingly to which they pleaded not guilty and claimed trial.

In order to substantiate the charges the prosecution examined Dr.R.S.Bishnoi PW 1,

Dr.Surender Singh PW 2, Sham Lal Licence Clerk PW 3, Karan Singh HC PW 4, Subhash
Chander constable PW 5, Bhagat Ram HC PW 6, Lilakhan constable PW 7, Gulshan Kumar
photographer PW 8, Shamsher Singh draftsman PW 9, Jagbir Singh ASI PW 11, Kapoor
Singh SI PW 12, Smt.Kamla PW 13, Umed Singh PW 14, Bhim Singh PW 15, Zile Singh
PW 16, Mewa Singh PW 17 Inspector Bijender Singh and Sobha Chand were given up by
the prosecution. The prosecution also proved on record Ex.PA and PA/1 applications made
to the medical officer. Ex.PAA sanction order, Ex.PB inquest report, Ex.PBB and PBB/1
seats of injuries, Ex.PD application, Ex.PD/1 opinion of the doctor, Ex.PE ruqa medical,
Ex.PF treatment charge, Ex.PG licence of the gun, Ex.PH affidavit of Karan Singh, Ex.PJ
affidavit of Lila Khan, Ex.PM scaled site plan, Ex.PN FIR, Ex.PN/1 statement of Sobhat
Singh, Ex.PN/2 ruqa, Ex.PO photo copy of the FIR, Ex.PQ recover memo, Ex.PR site plan of
place of occurrence, Ex.PS disclosure statement of Suresh, Ex.PT memo of demarcation of
the place of occurrence by Sobhat Singh, Ex.PU memo of demarcation of occurrence by
Dharampal, Ex.PV sketch of the gun, Ex.PV/1 recovery memo of the gun along with
cartridges and memo of demarcation of place of occurrence, Ex.PX site plan of place of
occurrence Ex.PY recovery memo of the pellets, Ex.PZ ruqa of the Arms Act, Ex.PZ/1 copy
of FIR No.243. When examined under section 313 Cr.PC the accused denied the prosecution
allegations and claimed their false implication.

In defence, they also examined Sobhat Singh as DW 1, Dharampal DW 2, Sahab Singh DW

3, R.K.Sharma as DW 4. They also proved statement Ex.DA of Smt. Kamla recorded under
section 161 Cr.PC in case FIR No.736 dated 16.12.1994 under section 302/34 IPC. Ex.DB
Photostat copy of statement of Umed Singh under section 161 Cr.PC. Ex.DC statement of
Sobhat Singh Ex.DE copy of judicial remand dated 26.12.1994, Ex.DF copy of memo of
personal search, mark X and Ex.DY copies of telegram and closed the defence evidence.
Prior to the consolidation of the Sessions Case No.61-SC of Arms Act against Lachhman and

36 | P a g e
Suresh with Sessions Case No.60-SC of 1995, the earlier evidence in the Sessions case 61-
SC three witnesses namely Sham Lal licensing Clerk, Dilbag Singh SI and Mohar Singh SI
were examined and it was stated that their evidence be also read in the main case.

Since Dharma had died, therefore, proceedings against him stood abated. The trial resulted
into conviction of Sobhat Singh, and Suresh under section 302 of the Indian Penal Code and
Suresh and Lachhman Singh were further convicted and sentenced under sections 25 and 30
of the Arms Act, respectively. It is a unique type of case where the complainant himself was
found to be killer.

Though Sobhat Singh himself was the complainant in the case who had recorded the FIR. On
the statement made by him at about 8 AM, FIR was recorded at 10 AM on 16.12.1994 but
the occurrence as stated by him was found to be false by the Investigating Officer SI Bhim
Singh (PW 15) and during his investigation three accused namely Suresh, Sobhat Singh and
Dharampal son of Beg Raj was found to be culprits.

At this juncture, the testimony of Smt. Kamla (a witness to the last seen), who would be the
last person to depose against the accused hailing from their own party cannot be said to be
incredible. Smt. Kamla while appearing in the witness box has stated that on 15.12.1994
after taking the dinner, they had gone to sleep. At about mid night accused Dharma and
Sobhat came to their house shouting that they had some work with Chander Bhan and they
had to go to Hisar for that purpose and they wanted to cause fire arm injuries to somebody to
involve Dharam Pal, Sarpanch in a case.

Smt.Kamla PW 13 during her cross-examination has again clarified that accused Dharma son
of Nanak is a collateral of her husband. They had talked with her husband about the motive
during that night but they did not talk to her. She denied if they had not gone to Hisar.

Story set up by Sobhat Singh appears to be false that they wanted to go to Chandigarh in
connection with search of match for the daughter of Sobhat Singh. Such story was never set
up by Sobhat Singh in the FIR recorded by him or later on during investigation. Since
Chander Bhan was related to the accused Dharma, therefore, there was no reason for Smt.
Kamla to doubt them particularly when they hailed from the same group. Since Maha Singh
their close associate was involved in a criminal case on that very day, and he had lost the
election, therefore, it is impossible that they would go to Chandigarh for seeking a match
during that night itself. The motive to commit murder is also writ large.

At the cost of repetition, it is apparent that since Sobhat Singh and Dharma being hailing
from the same faction had grudge against Dharam Pal son of Beg Raj and wanted to satisfy
their egos by involving him in some murder case. With that intention, they had joined Suresh
and went to his room and caused injuries to Chander Bhan. Thereafter, they themselves took
him to the hospital where Chander Bhan expired. Thus, the motive for involving Dharam Pal
son of Beg Raj and Dharambir and Umed in the murder of Chander Bhan stands proved.

Rather the motive against Dharam Pal son of Beg Raj and others for attacking Chander
Bhan does not stand proved at all. The credibility of Sobhat Singh also stands impeached for

37 | P a g e
the other reason that occurrence as stated by him is not proved. Neither the place of
occurrence nor the manner in which the occurrence took place stands proved.

According to Sobhat Singh complainant the occurrence had taken place at a distance of 1
Kms from village Sundawas but according to prosecution the occurrence had taken place in
the room (deserted kotha) in Adarash Nagar, Hisar as disclosed in the site plan Ex,.PM and
Ex.PX. Bhim Singh Investigating Officer (PW 15) has categorically testified that he at the
first instance, while believing the statement of Sobhat Singh, went to the place as identified
by him but he could not find pellets, any incriminating material, blood stains or other
symptoms i.e. skid marks and foot prints so that it could be ascertained and identified as
place of occurrence, but thereafter, while doubting the story, he went to Kamla on the same
day and recorded her statement indicating motive for causing injuries by Sobhat etc. and
from there, he had the clue to proceed in the investigation.

Similarly, he recorded the statement of PW 14 Umed Singh who stated that on the morning
of 16.12.1994 when he was present near Borstal Jail, Hisar waiting for some conveyance, he
had seen the Chander Bhan along with Sobhat Singh and Dharam Pal and Suresh accused
while going in a auto-rickshaw and Suresh was holding single barrel gun. Suresh was
arrested and pursuant to disclosure statement made by him, said licenced single barrel gun
was got recovered by him from the place shown in Ex.PM i.e. deserted Kotha in the presence
of Mewa Singh. Three pellets and some pieces of concrete material were also recovered from
Khurli which were taken into possession by the Investigating officer and attested by Mewa
Singh (PW 17). Mewa Singh (PW 17) has lent support to the fact with regard to recovery of
pellets, concrete material and single barrel gun from Turi Kotha and Mewa Singh was cross-
examined at length but no finger could be raised against him to challenge his credibility and
trustworthiness. He has stated that on 25.12.1994 he had gone to Hisar in order to collect
money from Commission Agent. When he reached Bus Stand, Hisar he was told by some
passengers that actual culprits relating to murder of Chander Bhan had been apprehended. At
this he went to Police Station, Hisar where Dharam Pal, Sobhat Singh and Suresh were found
in the police custody. Bhim Singh, SHO interrogated all the accused in his presence and they
admitted their guilt and Suresh pursuant to his statement led the police party to the kotha,
opened the door and got recovered gun wrapped in a cloth along with two cartridges.

The Investigating Officer also recovered the pellets lying in the khurli. Similarly he had also
seen the pellets marks on the wall of the khurli. A portion of the wall was broken and the
pellets were lying in Khurli adjoining that wall. Further in order to complete the chain of
evidence and with an endeavor to leave anything to doubt, the prosecution proved Forensic
Science Laboratory Report Ex.PB which reveals that SBBL gun got recovered from Suresh
was in working condition. Pellets which were found in the dead body of Chander Bhan,
found to have been fired, were of the size which were fired and loaded in .12 bore gun also
so the pellets which were recovered from khurli were of the same size to that found in the
dead body. There were also marks of gun shot on the wall of room as shown in the site plan
Ex.PM and photographs.

38 | P a g e
From this, two facts stand established: one is that the occurrence had taken place in the said
room and complicity of Suresh in the commission of crime. Had the occurrence taken place
on the road side as stated by Sobhat Singh then some marks of the violence, the tyre marks of
the jeep, blood stains empty or the pellets must have been found at the place. As regards the
argument that since no blood was found in the kotha of Adarash Nagar, therefore, it is
doubtful to believe that the occurrence had taken place there. Similarly, the place of
occurrence being thoroughfare, no question of pellet marks or tyre marks could be seen.

But this argument is devoid of any merit. because of the crystal clear motive on the part of
Sobhat Singh to commit such crime so as to implicate Dharam Pal Sarpanch in the case. As it
has already been observed that since Dharam Pal had no reason to come at such odd hours to
cause injuries to Chander Bhan that too without any motive against him and it also looks
abnormal that if he along with his companions had come to cause them injuries then they
would return after causing sole injury to Chander Bhan. Thus, apparently, the occurrence as
alleged by Sobhat Singh cannot be believed.

In view of the aforesaid circumstances and recovery of pellet marks, the concrete material
and recovery of gun from the kotha in question owned by Suresh indicate that the occurrence
had taken place nowhere but in the said kotha. As regards the ownership of the room, it is
evident from document mark X that Suresh himself had purchased the said room and the said
document has not been rebutted by Suresh accused. Since Sobhat Singh wanted to create
evidence for having a revenge from Dharam Pal Sarpanch, therefore, he made Chander Bhan
a soft target in order to project that Dharam Pal had committed his murder, therefore, it was
in all human probabilities and the movements made by Dharam Pal son of Nanak, Sobhat
Singh and Suresh and the place chosen by them invite us to draw the inference that there is
no other hypothesis except one that these were the accused persons and none else who
committed the crime.

The prosecution version does not only bank upon the testimony of Smt. Kamla and the
recovery of weapons but the case is also based upon the testimony of last seen witness Umed
Singh who had seen all of them in the auto-rickshaw before commission of the crime. He has
deposed that at the relevant time he has been waiting for the conveyance for going to his
village so that he could milch his buffalo in the morning when he had seen them coming in
the auto-rickshaw. Suresh was holding a single barrel gun and was sitting on the front seat by
the side of the driver, the remaining persons were on the rear seat. Auto-rickshaw stopped
near him, and on inquiry of the accused, he told that he was waiting for a conveyance for
going to his village.

During cross-examination, he clarified that he had to borrow money from Jasbir son of Ram
Sarup for purchasing fertilizer and since house of Jasbir was near Borstal Jail, Hisar,
therefore, after receiving Rs.3000/- from him he was going to his village. Umed Singh may
be little bit discrepant qua time of occurrence as the occurrence took place at about 6.15 AM.
The villagers cannot be expected to give accurate time and it is given on guess work. But the
presence of Umed Singh cannot be said to be doubtful at that time. It is a matter of common
experience that people in the villages normally return to their houses early in the morning

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and he had a special reason that he had to milch his buffalo and thereafter to go for
purchasing the fertilizer. It is also often seen that the rustic villagers have no sense of time
and they depose by guess work. Under these circumstances waiting for the bus after coming
to the road near Borstal Jail, Hisar is not unnatural and improbable. Even otherwise, he had
no axe to grind against the accused. Therefore, there is no reason to doubt his testimony

Issues
i. whether the prosecution version as set up by Sobhat Singh is correct or Chander
Bhan was murdered and thereafter instrumented for a motive to implicate Dharam
Pal son of Beg Raj, the elected Sarpanch of village against whom the accused had
a grievance?
ii. whether the statement of Sobhat Singh as given by him before the police on the
morning of 16.12.1994 is to be believed or not?

Arugments
I. Admitted facts of the case are that on 15.12.1994 there was an election of village
Sarpanch in their village. In this election main contest was between Maha Singh
and Dharam Pal. Sobhat Singh and Chander Bhan deceased were supporting Maha
Singh. During the election at about 10-11 AM there was a quarrel between the two
groups whereupon the shots were fired and a case was registered against Maha
Singh and Darya Singh under Section 307 IPC.
Dharam Pal was elected as Sarpanch. The other circumstances admitted by
Sobhat Singh are that he and Dharam Pal had brought Chander Bhan from his
house in the presence of his wife on 16.12.1994 at about 4.30 AM in connection
with some domestic work. Though the case of Sobhat Singh is that the occurrence
had taken place at a distance of 1 Kms from Village Sundawas, when a jeep
occupied by Umed Singh, Dharam Pal and Dharambir had arrived and Dharam
Pal had attacked Chander Bhan with a pistol.
To the contrary, the Investigating Officer found the statement of Sobhat Singh to
be false and reached the conclusion that no occurrence had taken place on the way
but it took place in a Kotha (room) of Suresh, where he was given gun shot injury
by Suresh with his SBBL gun and thereafter he was taken to the Civil Hospital,
Hisar
II. If his statement is found to be false then certainly in the presence of the clear
motive with Sobhat Singh etc. to implicate Dharam Pal, the story as discovered by
the police that Suresh, Sobhat and Dharma had committed murder of Chander
Bhan with the gun owned by Lachhman Singh father of Suresh would stand
established. As regards the credibility of Sobhat Singh it may be observed that
Sobhat Singh has admitted the prior occurrence in which Maha Singh and Darya
Singh were arrayed as accused. He has also admitted that Dharam Pal and Umed
Singh were the real brothers and Dharambir is the cousin of Umed Singh and
Dharam Pal. He has also admitted that Dharam Pal and Maha Singh were the main
constants in the election and Chander Bhan was agent of Maha Singh.

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 A case under section 307 IPC was registered against Maha Singh and Darya for
that occurrence. Dharam Pal was the complainant in the earlier case and he had
won the election therefore, there was no motive for Dharam Pal to cause injuries
to Chander Bhan. No particular enmity with Dharam Pal has been alleged by
Sobhat Singh against Chander Bhan for causing him injury.
Had Dharam Pal along with Umed Singh and Dharambir come to cause injuries
then they would not have caused a sole injury to Chander Bhan and they would
have also not spared Sobhat Singh and Dharam Pal son of Nanak also.

JUDGEMENT
Then coming to the other piece of evidence of extra judicial confession. Accused had
appeared on 25.12.1994 before the police and according to prosecution, they had contacted
Zile Singh, Sarpanch and made a confession before him regarding their guilt. Zile Singh
while appearing in the witness box has narrated the entire sequence of events stating that the
accused had come to him and suffered extra judicial confession before him. He has narrated
that they had compared one by one and stated that election of Sarpanch was held on
15.12.1994 in which they were the supporters of Maha Singh and many supports of Dharma
had caused injuries regarding which a case under section 307 IPC was registered and in order
to project a cross version, Dharma and Sobhat Singh had gone to Chander Bhan and then
after taking him along with them, had gone to the house of Suresh at Hisar as he was having a
gun. They wanted to get a cross case registered against Dharam Pal etc., thereafter all of them
reached at an abundened house situated at Adarsh Nagar. They further told that on the asking
of Dharma and Sobhat Singh, Suresh had fired a shot at Chander Bhan. Resultantly, Chander
Bhan had fallen down whereupon Suresh had fled away with his gun. Dharma and Sobhat
Singh took Chander Bhan to Civil Hospital, Hisar and got registered a case against Dharam
Pal son of Beg Raj and Umed Singh under section 302 IPC. After confirming these facts from
Sobhat Singh and Suresh he took all the three accused to the Police Station and produced
them before SI Bhim Singh. Zile Singh had no reason to falsely involve the accused. He was
a respectable person having no bad track record. Nothing was suggested to him that if he had
reason to depose against the accused and after the accused were produced, they got identified
place of occurrence. Suresh pursuant to his disclosure statement Ex.PS got recovered the gun
Ex.P.20 and cartridges Ex.P.21 and P.22. Disclosure statement also led to the recovery of the
pellets and concrete material from where the Investigating Officer could identify the place of
occurrence. No evidence has been led by the accused that kotha did not belong to Suresh and
the gun did not belong to his father Lachhman Singh. The extra judicial confession in the
given circumstances of the case certainly is a good piece of evidence supporting the
prosecution case.

In order to determine the value of the extra judicial concession. The apex court in case Gura
Singh Vs. State of Rajasthan 2001 (1) Recent Criminal Reports 122, laid down the
following guide-lines:-

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 "Indian Penal Code, Section 302. evidence Act, section 21, 24, and 25. Murder Extra judicial
confession. Law enunciated by Supreme Court summed up:

(i) Extra judicial confession, if true and voluntary, it can be relied upon by the court to
convict the accused for the commission of the crime alleged. Despite inherent
weakness of extra judicial confession as an item of evidence, it cannot be ignored
when shown that such confession was made before a person who has no reason to
state falsely ands to whom it is made in the circumstances which tend to support the
statement.

(ii.) Evidence in the form of extra judicial confession made by the accused to witnesses
cannot be always termed to be tainted evidence.

(iii.) If the court believes the witness before whom the confession is made and is satisfied
that the confession was true and voluntarily made, then the conviction can be founded on
such evidence alone.

(iv.) It is not open to the court trying the criminal case to start with presumption that extra
judicial confession is always a weak type of evidence. It would depend on the nature of the
circumstances, the time when the confession is made and the credibility of the witness who
speak for such a confession.

(v) Retraction of extra judicial confession which is a usual phenomenon in criminal cases
would by itself not weaken the case of the prosecution based upon such a confession.

(vi) An unambiguous extra judicial confession possesses high probative value force as it
emanates from the person who committed the crime and is admissible in evidence provided it
is free from suspicion and suggestion of any falsity.

(vii) Before relying on the alleged confession, the court has to be satisfied that it is a
voluntary and is not the result of inducement, threat or promise envisaged under section 24
of the Evidence Act or was brought about in suspicious circumstances to circumvent
Sections 25 and 26.

(viii) Court is required to look into the surrounding circumstances to find out as to whether
such confession is not inspired by any improper or collateral consideration or circumvention
of law suggesting that it may be true. All relevant circumstances such as the person to whom
the confession is made, the time and place of making it, the circumstances in which it was
made have to be scrutinized.

(ix) Extra judicial confession which is not obtained by coercion, promise or favour of false
hope and is plenary in character and voluntary in nature an be made the basis for conviction
even without corroboration. 1999 (2) RCR (Cri.) 285 (SC) relied and AIR 1987 SC 1507
distinguished."

In the instant case also the extra judicial confession appears to be true and voluntary made
before respectable person with a hope that he may be helpful for their protection when they

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surrender before the police through him and he had no reason to state falsely against them.
Witness has stood the test of cross examination and nothing fruitful could be elicited from
his testimony enabling this court to disbelieve him qua any aspect of the case. The defence
plea as set up by Sobhat Singh has been found to be hallow and the mischief played by him
ultimately was exposed. Thus, in the instant case, the chain of circumstances in order to
connect the accused with the commission of crime appears to be complete in itself and the
circumstances established in the case suggest no other hypothesis except the one that these
are the appellants except Lachhman Singh who had committed the crime. As regards the
contention that from the facts and circumstances, even if they are considered as proved even
then the intention of the accused to commit murder is not proved, therefore, at the most they
could be convicted under section 304 Part-II.

Having pondered over the argument, we do not find ourselves persuaded to it and we observe
that the accused with an intention to get a criminal cross case registered against Dharam Pal
Sarpanch etc caused such bodily injury to Chander Bhan which may be sufficient in the
ordinary course of nature to cause his death. The tamper had gone so high that hey could go
to any extent to have the revenge against Dharam Pal.

The medical evidence also reveals that injury caused was sufficient to cause death in the
ordinary course of nature. Circumstances that accused Dharma and Sobhat Singh, with an
intention to cause him injuries had gone to his house during dead of night and after taking
him towards Hisar and then after taking Suresh they went to his deserted room and fired at
him effecting vital organs of his body, therefore, certainly the offence could be traced to the
nature of injury as caused by him. Similarly, the trial court has also accepted version of the
prosecution with regard to recovery of the single barrel gun with two cartridges from the
deserted house belonging to Suresh. We also do not stand to differ with him on this aspect of
the case.

It is also established that Lachhman father of Suresh being owner of said gun had allowed
the gun to be taken by Suresh for misusing the same, as such the offence under section 25 of
the Arms Act against Suresh Kumar and under section 30 of the Arms Act against Lachhman
Singh also stand proved Resultantly, all the four appeals are dismissed.

As regards revision petition preferred complainant-Kamla, without pressing the enhancement

of sentence, it is urged on her behalf that on account of death of Chander Bhan, his widow
Smt. Kamla had to suffer a serious loss. She along with her children lost their bread-winner
rendering them as destitutes, as such, compensation may be awarded for their livelihood.

Having considered the contention, Chander Bhan became the victim of Suresh, Sobhat Singh
and Dharam Pal @ Dharma (since deceased) and they with an evil design to satisfy their
egos, showed him the door of death rendering Smt. Kamla and her children being destitutes
suffering for starvation. Chander Bhan was the sole breadwinner of the family.

As such, certainly, they are entitled to some amount of damages to be paid by Suresh and
Sobhat Singh, appellants. In the result, Criminal Revision No.907 of 2004 is disposed of with

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a direction to Suresh and Sobhat Singh, appellants, to pay a sum of Rs. one lac on account of
damages, in equal shares to Smt. Kamla and her two children.

CONCLUSION
We are the citizens of that prestigious country where a huge importance is given to the human
values. That country is India where it is mandatory to follow principles of natural justice only
for the welfare of people. The main ideology of India is to leave hundred guilty persons but
not to detain any innocent person. Because according to our constitution it is right of every
person to lead a dignified life. So no one can put restriction upon this right. So to detain any
innocent person is unconstitutional as well as against human rights. It is also necessary to
punish guilty persons if we want to reduce crime. And to punish someone it is necessary to
establish the guilt of a person and to prove guilt it is necessary to have some kind of
legislation. India is so lucky because here we have Indian Evidence Act. With the help of
Indian Evidence Act we can prove the guilt of a person. But sometimes a confession is made
by accused person which reduces the burden of judiciary to prove his guilt. But it is necessary
to see whether the confession is voluntarily or not. Because if it is voluntarily then their is no
need to think about it. But if it is involuntarily then we cannot convict the innocent person. It
might be possible that the confession had been made by accused due to some inducement,
threat and promise. So it is necessary to analysis whether the confession is voluntarily made
or not. That was why the confessions under sections 24, 25, 26 are inadmissible. Section 25
and 26 deals with confession made before police officer or made before any person under
police custody. The main purpose behind this is to protect the accused from the torture of the
police. The archaic attempt to secure confessions by hook or by crook seems to be the be-all
and end-all of the police investigation. The police should remember that confession may not
always be a short-cut to solution. Instead of trying to start from a confession they should
strive to arrive at it. Else, when they are busy on their short-route to success, good evidence
may disappear due to inattention to real clues.

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 BIBLIOGRAPHY
DR. AVATAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE (CENTRAL
LAW PUBLICATIONS, ALLAHABAD, 2011)
A.N. SAHA, SUPREME COURT ON CRIMINAL LAW (Ashoka Law House, New
Delhi, 2011)
DR.JUSTICE AR LAKSHMANAN, CRIMINAL MAJOR ACTS (Universal Law
Publishing, New Delhi, 1stEdition, 2012)
RATANLAL RANCHODDAS AND DHIRAJLAL KESHAVLAL
THAKORE, THE LAW OF EVIDENCE (Wadhwa and Company, Nagpur, 21st Edition,
2004)
S.S. SARKAR AND RAJIV RAHEJA AND SANJIV RAHEJA, SUPREME
COURT CRIMINAL REFERENCER (Capital Law House, New Delhi, 2008)

WEBOGRAPHY
www.manupatra.com
www.indiankanoon.org

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