The word was defined in the old English Act which is section 78 of the Police and Criminal Evidence Act, 1984 as the evidence made by the defendant on the admission of the crime committed or the guilt. Such a confession must be admissible in court. A confession that is obtained with oppression, threat or otherwise, it is inadmissible in court.
A free and voluntary confession of guilt by an accused person whether judicial or extra-judicial, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to ground a conviction with corroborative evidence.
The word ‘Confession’ ordinarily means admission or acknowledgment of guilt or wrongdoing – section 17 Indian Evidence Act. But Confession and Admission are distinct legal terms. Confession is more common with criminal proceedings while Admission is common with civil proceedings.
While every confession involves admission, admission alone does not amount to a confession. For instance, in civil proceedings, an agent can limit liability on behalf of his principal. In criminal proceedings, an admission made on behalf of a principal by an agent would not qualify as a confession especially in a case of felony.
Kinds of Confession
A confession may be as follows:
- Confession by a Co-accused
A formal confession is also called a judicial confession. It is a confession made in court before a Judge or a Magistrate or other tribunal – section 164 Code of Criminal Procedure. Examples include when an accused person pleads guilty to a charge upon the same being read to him by the court, or where the accused admits guilt in a statement in a preliminary inquiry.
An informal confession is any statement made outside the court by an accused person or a suspect or defendant tending to show that he is guilty of the offence for which he is charged or suspected – sections 24, 25 and 26 of the Indian Evidence Act. An informal confession is also called extrajudicial confession. It may be oral or written.
All confessional statements made to the police or other law enforcement officers qualify as an informal confession (Heramba Brahma v. the State of Assam, AIR 1982 SC 1592). Most referrals to confession are on extrajudicial confessions. It is made at the Police subsequently after the commission of the offense and not necessarily after the arraignment.
In fact, a confessional statement is made before the Police decide whether to prosecute or not.
If a person confesses to the commission of an offense, the same can be used against him or her at the trial for the offense in respect of which he made the confession. But for such confession to be admissible, same must have been made voluntarily (C.K. Ravendram v. State of Kerala, AIR 2000 SC 369).
Experience shows that sometimes, such suspects are made to make such confessions through threats, harassments, cajoling, torture and other forms of intimidation or inducement.
It is because of this that the courts are careful before convicting an accused person when the only evidence against him is the confession, especially where the accused rescind from such confession at the trial.
Retraction (Retracted Confession)
An accused person or suspect may object to a statement on the ground that it was not made by him or her. Where the accused denies the confessional statement, this is called a retraction – Swarna Singh v. the State of Punjab, AIR 1957 S.C. 637.
Retraction may come up in different ways:
- Where the statement is not signed;
- Where the accused or suspect denies that the signature belongs to him;
- Where the accused or suspect alleges that the statement was not properly or accurately recorded, that is, where it is not the accused who wrote down the statement himself;
- Where the accused or suspect alleges that the oral confessional statement was not his;
- Where the accused or suspect alleges that his or her written statement was altered by someone;
- Where the accused or suspect alleges that his or her statement was involuntary but fails to raise objection when it is tendered. In such a case, the court would deem the statement as tantamount to a denial that he made it.
Where that arises, the statement would be subject to evaluation like any other piece of evidence before the court and such rather belated retraction would not affect the voluntariness of the statement.
When such arises, there are certain terms to establish that the earlier statement made was not true or correct. They include
- That he was not correctly recorded; or
- That he, in fact, did not make the statement; or
- That he was unsettled in mind at the time he made the statement, or
- That he was induced to make the statement.
Effect of a Retraction-
Where a confessional statement is denied or retracted by an accused person or suspect, it is desirable to have corroborative evidence no matter how slight before convicting on the confessional statement. In fact, the court has a duty to test the veracity or otherwise of such statement by comparing it with other facts and circumstances outside the state in order to see whether they support, confirm or correspond with the statement. In other words, the court must scrutinize the statement to test its truthfulness or otherwise in line with other available evidence.
In considering whether a confession is true, the court has always considered the following questions:
- Is there anything outside the confession to show that it is true?
- Is the statement corroborated?
- Is the statement of facts made in the confession, so far as can be tested, true?
- Does the accused person or suspect have the opportunity to commit the offense charged?
- Was the confession possible?
- Is the confession consistent with other facts which have been ascertained and proved at the trial?
In all these questions, the answer is that a conviction will not be questioned or set aside solely on the ground that it was based entirely on a confession which was retracted.
Confession by a Co-Accused or Confessions Implicating Co-Accused Person(s)
The position of the law is well established that a confession made by one accused person or suspect is a relevant fact against the person making it only and not against any other person the confession may implicate.
That is to say, a confession made by an accused person is admissible against him only. In the same way, a confession by an accused person or a suspect in his extra-judicial statement which incriminates a co-accused, if it is corroborated by other evidence, a court can use it.
The reason for the position that a statement by an accused person is admissible against him alone and not against any other is obvious. The maker may have his own motives for implicating any other person and because the person implicated would have no opportunity to refute what has been alleged against him.
It is a common occurrence to see accused persons trying to put the blame of their wrongdoings on another person so as to share the blame with others. This does not mean that the statement must be objected to by the other person so implicated at the point of tendering the statement.
The point remains, a confession statement by an accused person or suspect is evidence against the maker only and not against any other person unless the other person has adopted the statement by words or conduct.
Confession Obtained from an Accused Person through an Interpreter
There may be cases where the Investigating Police Officer (IPO) who receives the confessional statement of the accused or suspect does not understand the language of the accused or suspect and the accused or suspect did not write the statement by himself or herself.
In such a case, the police officer would need the services of an interpreter to give evidence. The position of the law is that evidence of an IPO about the confession of crime made by an accused person or suspect in a language the IP does not understand but relayed to him by an interpreter amounts to inadmissible hearsay evidence where the interpreter is called as a witness.
The form of Confessional Statement
Although confessional statements are generally made to the Police in writing during investigations, it could also be made orally. A confessional statement is no less a confession if it is made orally. It carries no less weight than that made in writing and is regarded as strong as a written confession if the testimony of the witness to whom it was made is accepted by the court.
The rationale for Admitting Confessional Statements in Evidence
Ordinarily, confessions are not admissible because they constitute hearsay evidence. But because of the crucial role confessions play in the determination of criminal trials, the common law permitted the admissibility of confessions as an exception to the hearsay rule. This is because of the danger of unreliability traditionally associated with hearsay evidence is outweighed by the fact that a statement so clearly averse to the interests of the maker is unlikely to be made unless the contents are true. It is seen generally as the best form of evidence.
Admissibility of Confessional Statements
It is clear that to constitute a confession; a statement must admit or acknowledge that the maker of the statement committed the alleged offense. The confession must be direct, positive, precise and unequivocal as to the guilt of the accused person or suspect.
It must also be noted that the confessions of an accused is admissible against him or her only and not against any other person. In other words, an accused person’s confession cannot be used to convict an accomplice.
For a statement to be construed against an accused person as a confessional statement, the statement must contain an admission of both the actus reus and mens rea of the offense charged.
The charge with the offense of treason or treasonable felony is not sustainable unless there is corroboration. Such corroborative evidence includes the testimony of at least two witnesses to at least one overt act of the kind of the felony alleged.
Challenge of Confessional Statements
Confessional statements may be challenged by an accused person or a suspect at any of these two bases. They include:
- That he or she (the accused person or suspect) did not make the statement. This is commonly referred to a retraction.
- That the statement was made by the accused or suspect but it was not made voluntarily.
One important key point to note is that the test of admissibility of a confessional statement is not whether the confession is true but, the question of how the statement was obtained.
Difference between Confession and Admission
|Evidence goes to criminal proceedings.||Admission goes to civil proceedings.
|The evidence is against the maker of the statement.||Admission is for the maker of the statement.
|Evidence must be made voluntarily and free in other to be admissible.||Admission is rebuttable and does not amount to conclusive proof of the matter.|
Confession is admission but admission is not a confession. The two are distinct but they sometimes overlap. The aim of confession is admissibility of evidence which is used against the accused person or suspect in the court of law. Where a confession statement is made under threat, promise, duress, etc. it may fail the admissibility test. Therefore, a confession statement must be made voluntarily and freely by the accused person or suspect, anything short of that may be thrown away as evidence in court or it may lead to trial within a trial.