Report No. 69

Chapter 10

Confessions-general Discussion and Scheme

10.1. Introductory.-

With section 24 begins a group of sections dealing with confessions, and we propose to devote this chapter mainly to the scheme of the sections concerning confessions.

10.2. There is no statutory definition of the expression "confession" in the Act. Nor is there a separate provision specially making confessions relevant, because relevancy, as such, is in fact dealt with, and is governed, by the general provision in section 17 (and the succeeding sections), whereunder "admissions" are relevant. In the scheme of the Act, confessions are treated as a species of admissions, so far as the basis of their relevance is concerned. The principal object of the sections dealing with the subject (sections 24-30) is to lay down certain special rules regulating the use of confessions. Of course, the above comment relates to relevance, and not to weight. Nor does it deal with the quantum of proof in criminal cases-an aspect which may bring certain special considerations into play.

10.3. Relevance of admissions.-

Any admission by an accused of an incriminating fact falls within the scope of sections 18 to 21, Evidence Act, and is, therefore, relevant.1 In Pakala Narayanswami's case,2 the Privy Council observed that a confession is an admission, in terms, of the offence itself, or at any rate, substantially, of all the facts which constitute the offence. In this sense, a confession is more restricted than an admission. What we want to point out is that the relevancy of confessions having been provided for by sections 17-21, it was not necessary to provide for it again.

But special rules of irrelevance had to be provided for. The circumstances under which a confession becomes irrelevant, are, therefore, elaborately dealt with in sections 24, 25 and 26. These are followed by sections 27 to 30, which impose some limitations on the operation of sections 24 to 26, or otherwise make certain provisions by way of clarification or other provisions appropriate for confessions.

1. Ghulam Hussain v. King, 77 IA 65 (PC).

2. Pakala Narayanswami v. Emperor, AIR 1939 PC 47 (52).

10.4. The entire group is followed by section 31-a section dealing with admissions. We may also mention that confessions recorded by Magistrates must comply with the Code of Criminal Procedure.1

1. Section 164, Code of Criminal Procedure, 1973.

10.5. Result of the scheme.-

The result of this scheme is that a statement, in order that it may be admissible in evidence with reference to the group of sections now udder discussion, must satisfy the following conditions, or possess the special features mentioned below:-

(i) it must amount to an admission (sections 17-21),

(ii) if it, amounts to a confession (an expression not defined), it must not be excluded by sections 24 to section 26. But this is subject to (iii) below,

(iii) certain restrictions or doubts as to the admissibility of confessions are removed by section 27 to 29,

(iv) certain special rules are given in section 30, Evidence Act (confession of a co-accused), and section 164 of the Code of Criminal Procedure, 1973.

10.6. Every admission not a confession.-

It is clear that1 every admission made by an accused person is not, in the view of the law, a confession; for, if that were so-that is, if the expression "admission made by an accused person" were identical in meaning with "confession made by an accused person"-then there would be no occasion for the legislature to change the form of expression, and, after using the word "admission" in sections 17 to 23, to use the word "confession" in sections 24 to 30.

Further, it is impossible to hold that admissions mean only statements made by parties to civil proceedings and do not include statements made by parties accused in criminal proceedings, without restricting the language of sections 17 to 23 in a manner at variance with its natural meaning and import, and especially (at variance) with the illustrations (b), (c), (d) and (e) to section 21, all of which refer to statements by accused persons as being admissions.

1 Illahi Baksh, (1886) 21 PR Cr No. 16 (28, 31).

10.7. Confession an exception to hearsay rule.-

Confessions (like all admissions) are an exception to the rule against hearsay. As a general proposition, the rules of evidence exclude most out-of-court statements-either oral or written-if they are offered to prove the truth of the matters asserted in them. However, there are several exceptions to the "hearsay" rule, one of the most important of which permits the prosecution to introduce, in a criminal trial, any relevant out-of-court statement made by the accused1. In this sense, confessions constitute an exception to the rule against hearsay.

1. Morgan Admissions as an exception to the Hearsay Rule, (1921) 30 Yale LJ 355.

10.8. There is some controversy as to the theoretical basis in support of admitting such statements. Wigmore, in adopting the approach first put forth by Professor Morgan1, grouped, in one exception to the hearsay rule, all statements made by an accused and those made by a party to a civil litigation2. So far, he was logical. But he claimed that the major justification for the hearsay rule was to ensure that the side not offering the evidence has an opportunity to cross-examine the original declarant. And, (he added), whenever the declarant was the party against whom the evidence is being offered, the reason for invoking the hearsay rule was absent:

If the defendant wishes to contradict the truth of his former assertion, he has only to take the stand. But, this argument could not provide a satisfactory historical explanation for the exception, because, until the 19th century, a party to a civil litigation was not competent to testify, and the opportunity for the defendant to refute his earlier statement was, thus, limited to the possibility of presenting the full story to the court through other witnesses. In criminal cases, again, the accused was not a competent witness until the law was altered by a specific statutory provision-in England (1898) and in India (1955)3.

1. Morgan Admissions etc., (1921) 30 Yale 14 355.

2. Wigmore Evidence, 3rd Edn., 1940, p. 1048.

3. (a) The Criminal Evidence Act, 1898 (English).

(b) The Code of Criminal Procedure (Amendment) Act, 1955, inserting section 342A of the Code of Criminal Procedure, 1898: See now the Code of 1973, section 315(1).

10.9. In one of the American cases,1 a fairly satisfactory explanation for admitting statements by an accused appears: "Basically, these statements, being relevant, material, and competent, are admissible. The problem is whether any specific rule excludes them, whether there is some idiosyncrasy which denies to them the general basic rule of admissibility otherwise applicable."

1. Jones v. United States, 296 P 2d 398 (403-04) (DC Cir 1961), cert. denied: (1962) 370 US 913.