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Aghnoo Nagesia V. State of Bihar

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Aghnoo Nagesia v. State of Bihar
Section 25 of the Evidence Act is a provision of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in ss. 24-30 of the Evidence Act and ss 162 and 164 of Cr PC. Sections 17-31 of the Evidence Act are to be found under heading ‘Admissions'. A confession is a species of admissions dealt with in ss. 24-30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises..Section 25 provides that no confession made to a police officer shall be proved as against a person accused of an offence. The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against he accused. It covers a confession made when he was free and not in police custody, as also a confession made before an investigation had begun. The expression accused of any offence covers a person accused in an offence at the trial whether or not he was accused of the offence when he made the conclusion. Section 26 prohibits 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. The partial ban imposed by s 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by s 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by ss 24, 25 and 26. It provides that when any of the information received from a person accused of any offence in the custody of a police officer, such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, maybe proved. Section 162, CRPC, forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any query or trial in tespect of the offence in the course of an investigation, save as mentioned in the proviso and in cases falling under subsection 2, and it specifically provides that nothing in it shall be deemed to effect the provisions of section 27 of the Act. The words of section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of investigation may be recorded by a magistrate under section 164, CRPC, subject to the safeguards imosed by the section. Thus, except as provided by Section 27 of the Act, the confession by an accused to a police officer is absolutely protected under Section 25 of the Evidence Act, and if it is made in the curse of an investigation, it is also protected by Sec. 162 of CRPC and a confession to any other person made by him while in the custody of a police officer in the immediate presence of Magistrate is protected by Section 26. These provisions seem to proceed upon the view that confession made by an accused to a police officer are made by him while he is in custody of a police officer are not to be trusted.
Section 154, CRPC provides for recording the first information. T report as such is not substantive evidence. It may be used to corroborate the informant under s 157 of the Evidence Act or to contradict him under s I45 of the Act, if the informant is called as a witness. if the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under s 8 of the Evidence Act. If the information is a non- confessional statement, it is admissible under s 21 of the Evidence Act and is relevant, Faddi v State of Madhya Pradesh, However, a confession first information report to a police officer cannot be used against the accused in view of s 25 of the Evidence Act. The Indian Evidence Act does not define confession. For a long time, the courts in India adopted the definition of confession given in Art. 22 of the Stephen’s Digest of the Law of Evidence. According to that definition, confession is an admission made at any time by a person charged with crime, stating o8r suggesting the inference that he committed that crime. This definition was discarded by the judicial committee in Pakala Narayanswami v. Emperor case. 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. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession.
These observations received approval of this court in State of Punjab. In State of Uttar Pradesh v Deoman Upadhyaya, Shah J referred to a confession as a statement made by a person stating or suggesting the inference that he has committed a crime.
Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is used against him, the whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence only the inculpatory part. The accused in entitled to insist that the entire admission including the exculpatory part must be tendered in evidence, and principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused.
A confession may consist of several parts may reveal not only the actual commission of the crime but also the motive, the preparation, the provocation, the weapons used, 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 seperate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, ie, some fact which by itself or along with other admitted or proved facts suggested the inference that the accused committed the crime, though each part taken singly may not amount to a confession with each of them being part of the 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.
If proof of the confession is excluded by any provision of the law such as ss 24, 25 and 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as s 27 of the Evidence act. Little substance and content would be left in a confessional single statement is permitted.
Sometimes, in a single sentence in a statement may not amount to a confession at all. Take the case of a person charged under Section 304A of IPC , and a statement made by him to a police officer that he was drunk: “ I was driving a car at speed of 80 miles per hour; I could see A on the road at a distance of 80 yards; I did not blow the horn; I made no attempt to stop the car; the car knocked him down. ” No single sentence separately as a non-confessional statement. Again, take a case where a single sentence in a statement amounts to an offence. A states B struck him with a Tangi and he hurt him. In consequence of the injury he died. A committed an offence and is chargeable under various sections of IPC. Unless he brings his case within one of the recognised exceptions, his statement amounts to an admission of an offence and the intention and knowledge of the accused, and negatives the right of private defence, accident and other possible defence. Each and every omission of an incriminating fact contained in the confessional statement form part of the confession.
If the confession is caused by inducement, threat or promise as contemplated by S 24 of the Evidence Act, the whole confession is excluded S 24. Proof of not only the admission of the offence but also the admission of every other incriminating fact such as motive, preparation and subsequent conduct is excluded by S 24. To hold that proof of admission of other incriminating fact is not barred by s 24 is to rob the section of its practical utility and content. It may be suggested that the bar of s 24 does not apply to other admissions, but though receivable in evidence, they are of no weight as they were not caused by inducement, threat or promise. According to this suggestion, the other admissions are relevant, but are of no value. However, a plain construction of Section 24, proof of all admissions of incriminating facts contained in confessional statement of all incriminating facts related to the offence.
A little reflection will show that the expression confession in ss 24 to 30 refers to the confessional statement as a whole including not only admissions of the offence but also including admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by ss 24,25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the facts discovered in consequences of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that information leading to discovery may be part of the confession of the accused, and thus, fall within the purview of ss 24,25 and 26. Section 27 thus, shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, s 30 permits the court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Thus, according to s 30 matters affecting other persons may take part of the confesion. If an FIR is given by the accused to a police officer which amounts to a confessional statement, proof of the confession is prohibited by s 35. The confession does not amoumt to an admission of the offence and neither does it admit incriminating facts that to the offence contained in the confessional statement.
Our attention is not drawn to any provision of this court or of the Privy Council is the question whether apart from s 27, a confessional first information report given by an accused is receivable in evidence against him. The decisions of the High Court on this point are hopelessly conflicting. They contain all shades of opinion ranging from total exclusion of the confession to total inclusion of all admissions of criminating facts except the actual commission of the crime. In Haji v Emperor and Nur Muhammad v Emperor, the Lahore High Court held that the entire confessional first information report was inadmissible in evidence. In Emperor v Harman Kisha, the Bombay High Court held that the entire confessional report dealing with events at the night of the offence was hit by s 25, and he could not be said that portions of it dealing with the motive and the Opportunity were not parts of the confession. In Emperor v Sommonju Brahman, the Patna High Court held that no part of the confessional FIR was receivable in evidence, the entire report formed a single connected story and no part it had significance except in relation in the whole.
Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub-inspector stated he arrested the appellant after he gave the FIR leading to discovery. Prima Facie, therefore the appellant was not in custody of a police officer when he gave the report, unless it can be said that he was then in constructive custody. On question whether a person directly giving to police officer information which may be used as evidence, against him, may be deemed to have submitted himself to the custody of the police officer within meaning of section 27, there is a conflict of opinion.

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[ 2 ]. AIR 1918 Lah 69.
[ 3 ]. 90 Led Cas 148 (Lah).
[ 4 ]. AIR 1935 Bom 26.
[ 5 ]. AIR 1940 Pat 163.
[ 6 ]. State of U.P. v. Deoman Upadhyay, AIR 1960 SC 1125.…...

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