By Divishada Desai and Trisha Rai
Admissions and Confessions are two exception to the hearsay rule that states, “any evidence that is in essence hearsay is no evidence”. The Indian Evidence Act 1872, under Section 60 of the Act stipulates that oral evidence must be direct which means that a person must directly hear, see or sense a fact1. Section 17 of the Indian Evidence Act defines admission. Admissions are the broader category under which confessions are categorised. Statutorily, confessions, are discussed in Section 24 to Section 30 in the Act, while admissions are in general dealt in Section 17 till Section 312. It is generally accepted that confessions are mainly used in the parlance of a criminal trial whereas, admissions in a civil as well as criminal proceeding.Confessions can be understood as a statement made by an accused acknowledging in a criminal trial, of the truth of the main fact charged or of important constituent of it.3 Therefore, simply put, a confession is a voluntary statement of admission by an accused of his involvement in a criminal offence. Across jurisdictions, evidentiary value and admissibility of an admission and confession are topics that have had much deliberation and have evolved from the legal theory of voluntariness to the circumstances and statutory interpretation of the courts in applying the law to decide admissibility and value of a confession.This paper aims to delve into the evidentiary value and admissibility of admissions and confessions evolving from the common law jurisprudence of voluntariness to the statutory holdings by the Indian courts and international common law jurisdictions. This paper also critically considers possible changes that can be implemented in the Indian law for a more efficient justice system.
It is important to note, that Indian evidence act, does not only apply to criminal cases, therefore the difference between admission and confession is not alegal difference per se, but majorly a substantive difference due to the depth of the evidence that is derived. However several common law jurisdictions like the United Kingdom have separate evidence laws for criminal proceedings hence there admissions and confessions have been used interchangeably. But in India since the statute does not specify any such bar between criminal and civil application of laws, it is important to note that confessions fall within the category of admissions. Admissions are mainly of three distinct kinds judicial which is made to a Magistrate, casual that do not form a part of the official records, and admission by conduct4. A test that is used to distinguish confessions from admissions is that where the statement alone is enough to convict, it is said to be a confession whereas, as when some adjoining evidence is required to confirm conviction it would be an admission.5 A statement can be construed as an admission if the statement admits a fact from where a liability can be inferred. For instance, if X has been accused of poisoning Z and he admits that he purchased poison. It can be inferred that he is guilty unless proved that the poison had been purchased for some other purpose. However, in the Chikam Koteswara Rao v C Subbarao6 the court observed that the inference has to be unambiguous and that admissions are only probable inferences. Therefore have to be backed by other relevant evidence as well. Hence, it is clear that confessions have a greater evidentiary value when compared to admissions.
Jurisprudential origins and legal theory of confessions
The law of confessions has a very extensive history and its application has been varied across jurisdictions. However, common law jurisdictions find the roots of their rule of confessions and its admissibility in the “test of voluntariness7”. The voluntary test saw its inception primarily in the English case of Rex vs Warickshall8, where the accused made a full or complete confession after the police promised him a certain favour. The court ruled that such promises ought to make the statement ‘involuntary’ and therefore should not be admissible.
The rationale behind this test and the law as observed in several jurisdictions was that voluntary confession was not the end destination but in fact a way of ascertaining reliability which would be the deciding factor.
However, the English law jurisprudence of reliability did not see an apt practical application. On the contrary, English and American courts established that a confession would only be admissible if it has been made voluntarily and importantly, as an exercise of freedom and choice of voicing or remaining silent. Hence, the voluntariness test propogated confusion in common law jurisprudence with respect to admissibility of confessions. It can be inferred that this interpretation of the test, was a result of the amalgamation of the two rationales of confession, that is , nemo tenetur9 and the common law voluntariness doctrine10. This led to a shift in the paradigm, with a focus on voluntariness instead of reliability. In essence, the major crux of the test rested on the accused decision and choice to speak or stay silent rather than the actual reliability of his statement.
While this was a major issue riddled with uncertainty, this is not the only aspect of the inaccuracy of the test. A lacuna that further arose out of such an approach was the lack of a standard parameter to assess voluntariness. As “voluntariness” would depend on various factors like age, race, mental and psychological strengths and weaknesses11. The English courts added to the confusion by allowing physical evidences that were brought into the case by a confession that was “involuntary” in A Others vs Secretary of State for the Home Department.12
Evidentiary value and admissibility in different jurisdictions
Often a confession contains inculpatory and exculpatory statements. An exculpatory statement means these statements may be explanations, excuses or statements proving the innocence of the accused whereas, inculpatory statements are statements which incriminate the individual making them.13 A confession with both elements is called a mixed statement and it has been an ongoing debate across jurisdictions about whether such confessions must be taken as a whole or should be taken separately and if including only one as evidence is plausible.The debate also extends towards the reliability and voluntariness of such statements
In India, the Indian Evidence Act 1872, governs the laws relating to evidence. Section 24 charts out the grounds for inadmissibility of confessions. According to it, any confession that is made under circumstances which make it apparent that a confession has been made by an inducement , threat or a promise would make such a confession inadmissible.14 If the circumstances create a doubt in the mind of the court that the confession has been obtained through improper means , it shall be inadmissible.The issue of inclusion of mixed statements as a whole was to be accepted or rejected was raised inEmperor v Balmukund15, “The court decided that where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible”16.
This rationale was then applied in the case of Palvinder Kaur v State of Punjab17, by the Supreme court, that overturned the high court’s decision of including the inculpatory part and excluding the exculpatory part as established in Narayanswami v Emperor18, stating “a statement that contains self-exculpatory matter ‘cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed.”19
The Supreme court stated that the High court, including only the inculpatory statements went against the well established fact or rule regarding confessions and admissions that these must either be accepted as a whole or rejected as a whole and that the court cannot accept only the inculpatory part while rejecting the exculpatory part as incredible20.This ruling in the case of Palvinder Kaur v State of Punjab was overturned in the case of Nishi Kant Jha v State of Bihar21, where the court decided that excluding exculpatory and including inculpatory statements is allowed and Courts have the authority to not take confessions as a whole. Interpreting Taylor’s Law of evidence, even though it is presumed that the part of the statement conceding against the maker is true, admissions should be taken as a whole despite some part being favourable to the maker22. Therefore without the entirety of the statement being considered the veracity of the evidence against him cannot be ascertained. It does not grant credibility to all parts of a statement, but puts the onus on the jury to consider the circumstances and accuracy of the statement.
Thus we, observe that the Court is building up its decision towards the credibility of each statement. Thereby in India, exculpatory statements are not included and confessions or admissions do not have to be included as a whole.
In the United Kingdom, the common law on Evidence and confession is now regulated by the Police and Criminal Evidence Act 1984 ( PACE)it very broadly defines confession, thus there is also an ongoing debate about the inclusion of exculpatory statements. The confession rule is governed and stipulated in 76(2) and 82(1) of the PACE.23 Section 76 has been conceptualised from the Eleventh Report of the Criminal Law Revision Committee24. The Committee had researched that reliability was the most appropriate basis for determining the admissibility of confessions but considered that the use of oppression should also result in exclusion25. The section states that if it appears to the court that the confession so obtained is a result of oppression or such circumstances that render the confession unreliable due to the consequences of such circumstances then the said confession would not be admissible unless the prosecution proves that the confession was not obtained by such means. Therefore here it is clearly inferenced that the current law as well treads on exclusion of two principles. Firstly, the oppression by the police and secondly, reliability.26
If the courts had a broad understanding of “confession” under section 82(1) including statements of the accused that the prosecutor intends to argue to inculpate the accused, then by virtue of section 76, exculpatory statements would be covered by the confessions rule. However the majority of cases in England support a narrow reading of “confessions” in section 82(1) which do not take into account exculpatory statements.27 In the case of R v Hasan28, the court observed that the word ‘includes’ in section 82(1) of PACE only includes the adverse statement in confession but not the innocent one. The interpretations of sections and narrow readings of the definition is what decides the exclusion of exculpatory statements in court however, the biggest factor that UK courts consider that Indian courts may or may not consider is oppression. Even though a statement might be exculpatory in nature, one cannot rule out the police brutality and oppression that may have been inflicted upon the accused to make such statements irrespective of the nature. According to Pattendon, the criterion for assessing exclusion of evidence is, whether its quality get affected in the way it was obtained. If the judge opines that the police misconduct had impacted the quality then it is excluded.29 Therefore only statements that are voluntary and free of any police misconduct would be admissible as in section 76 (2) of PACE.
Australian law on the other hand has seen some evolvement and has made attempts to include reliability in a more comprehensive and inclusive manner despite the Australian law on evidence and confession being regulated by Evidence Act, 1995 which largely echoes the United Kingdom’s PACE. According to the Australian laws Section 84 of the Act states that an evidence of admission is not admissible unless the court is satisfied that the admission has not been obtained through violent, oppressive degrading conduct, or under any threat.
However, high courts in Australia have reimposed reliability as the major test for admissibility of a confession. The landmark cases of Rv Swaffield30 and Pavic v R31 which introduced a three-fold test to determine admissibility32. It states that if the confession is voluntary, the next step should be to check if it is reliable and lastly, if it should fall within the ambit of discretion.Instead of placing importance on defining voluntariness as freedom from any kind of pressure, the courts have interpreted it as free from undue pressure.33
The Australian high court’s test can be seen as an hybrid form of test which takes into account both, the earlier common law principle as well as the new legislative rationales. It effectively overcomes, the subjective issue of voluntariness and the dispute between exculpatory and inculpatory statements.
In the case of Aghnu Nagesia v. State of Bihar34, the court stated the rationale behind custodial confessions being invalid, forcefully obtain confession to an act that a person might not have actually committed, but confesses to escape the torture. A confession obtained in this manner would be invalid as it is involuntary.
Police brutality is a concern that is prevalent across the globe and promote factors like fear and torture which reduce the reliability and credibility of confessions. Thus in the UK the jury is given the right to disregard any confession which may been privy to oppression or torture.
UK has taken a different approach to admissibility of custodial confessions. they have now disregarded the “voluntariness” standard for the admissibility of confessions.Oppression reduces the credibility and reliability of the confessions however if all custodial confessions are held inadmissible it will result in prosecution losing out on credible confessions.Thus the focus of the UK law is on the humanness of the technique applied, and has adopted a procedure to complement reliability and the objective of restricting police excesses35. Section 76 of PACE puts the burden of proof on the prosecution to prove the lack of oppression moreover section 76 (8) of PACE defines oppression which states that oppression must be a substantial application of force, that operates beyond mere battery36. Therefore by a plain reading of these sections one can see the liberalization of police techniques however if a confession seems to have been affected by inflicting torture the court can hold it invalid.It is observed in Ibrahim v R37, where the court highlighted the need for credibility being essential for admissibility. Along with putting the burden of proof on prosecution UK has a Code of practice for police that they must follow, the Code controls the force used by police during recording of confessions and establishes incorporative norms for the police. Therefore in UK custodial confessions are admissible in court.
On an in-depth analysis, a change in confession and admission law in India, should be focused on maintaining a balance between a control on police oppression and conviction of the guilty. The admissibility of exculpatory statement has been unclear. In our opinion, the common law jurisprudence of voluntariness was accurate in the rationale of reliability as a standard of admissibility. However enforcing it with a voluntary test will definitely not result in an accurate outcome, as it will be a rarity that one would want to admit guilt. Most of the times, it has to be achieved through investigating authorities. Even though an exculpatory statement goes against the very essence of confession that is admitting guilt it cannot be excluded solely on the grounds that it is non voluntary or oppression. In such circumstances reliability should be considered while admitting confessions as seen in the UK and Australian courts. A balance can be achieved by incorporating a comprehensive code of practice like in the United Kingdom. However, with such restrictions on police action, it should also be empowered with appropriate legality being granted to police in recording confessions, which would create the much needed balance between the justice and procedural formalities38. This can be achieved by putting the onus on the prosecution to prove the reliability and lack of oppression. Each confession can then be considered on a case by case basis where after evaluating both the sides, the courts can decide the admissibility of a confession given to the police. This responsibility should be shouldered by the judiciary,so that no useful confession is just lost to the mere fact that a custodial confession is not admissible. After these changes, the credibility, reliability and accuracy of the statement shall be determined by the judges and therefore there seems to be no logic as to why a police confession should be inadmissible.
—Divishada Desai and Trisha Rai are 4th Year BA LLB students of OP Jindal Global University
1 Indian Evidence Act, 1872 s 60
2 Gopal S Chaturvedi, Law on Admissions and Confessions 243-244 ( C D Fields 2013)
4 Indian Evidence Act, 1872 s 18, s19, s20.
5 11th ed. Sarkar et al Sarkar’s Law of Evidence 673 (SC Sarkar 1964)
6 Chikam Koteswara Rao v C Subbarao , AIR 1971 SC 1542 ( 1970)
7 Steven Penney “Theories of confession admissibility : A historical view” in American Journal of Criminal law (London, Sweet Maxwell.)
8 Rex vs Warickshall (1783) 168 ER 234
9 Rosemary Pattenden “Using the overtly non-incriminating statement to incriminate: A theoretical Framework (1993) International Journal of Evidence and Proof. pp 217
10 Eileen Skinnder, : the Art of confessions: A comparative look at the law of confessions – Canada, England the and Australia, pg 9 International Centre for Criminal Law Reform and Criminal Justice Policy
12 A and Others vs Secretary of State for the Home Department  UKHL 71
13 Gopal S Chaturvedi, Law on Admissions and Confessions 248-249 ( C D Fields 2013)
14 Indian Evidence Act, 1872, s24
15 Emperor vs Balmukund AIR 1931 AII 1,
16 CJ Mears, in Emperor v Balmukund- Para 9
17 Palvinder Kaur vs State of Punjab 1952 AIR 354
18 Narayanswami v Emperor AIR 1932 Mad 507
19 Justice M.C Mahajan, para 17 in Palvinder Kaur vs State of Punjab
20 Supra Note 17
21 Nishi Kant vs State of Bihar 1969 AIR 422
22 Supra note 17
23 Police and Criminal Evidence Act 1984 s 76(2)
24 Criminal Law Revision Committee 11th Report (Cmnd)4991 (1972)).
25 A.A.S Zuckerman Criminal Law Revision Committee 11th Report, Right of silence, Modern Law Review pp 509-518 1973
26 Ian Dennis, The Admissibility of Confessions under Sections 84 and 85 of the Evidence Act 1995: An English Perspective Vol 18:34, Sydney Law Review 35, 40-42 (1996).
27 Eileen Skinnder, : the Art of confessions: A comparative look at the law of confessions – Canada, England the and Australia, pg 9 International Centre for Criminal Law Reform and Criminal Justice Policy pp 20.
28 R vs Hasan  UKHL 22
29 Supra Note 9.
30 R v Swaffield  HCA 72 ALJR 339
31 Pavic v R  151 ALR 98
32 Elizabeth Stone, The law of confessions in theory and practice : Swaffield and Pavic 3 International Journal of Evidence and Proof 57, 59(1999)
34 Aghnu Nagesia v State of Bihar AIR 1966 SC 119.
35 Arghya Sengupta, Confessions in custody of a Police Officer: Is it the Opportune Time for change Vol 18 Student Bar Review 31, 34 (2006)
37 Ibrahim v R  AC 599
38 Supra Note 35 pp 44