cONFESSION

The term confession is nowhere defined in the Evidence Act. All provisions
relating to confessions occur under the heading of admission. If a statement is
made by a party to a Civil proceeding it will be called an admission and if it is
made by a party charged with a crime it will be called a confession. A
confession is a statement made by a person charged with a crime suggesting an
inference as to any facts in issue or as to relevant facts. The inference that the
statement should suggest should be that he is guilty of the crime.
Stephen defined Confession as : A confession is an admission made at any
time by a person charged with a crime stating or suggesting the
inference that he committed that crime.
A confession is a direct acknowledgment of guilt, on the part of the
accused, and by the very force of the definition excluded an admission
which of itself as applied in Criminal Law, is statement by the accused
direct or implied, of facts pertinent to the issue, and tending in
connection with a proof of other facts to prove his guilt but of itself is
insufficient to authorise a conviction.
The acid test which distinguishes a confession from an admission is
that where conviction can be based on the statement alone, it is a
confession and where some supplementary evidence is needed to
authorise a conviction, then it is an admission. An other test is that if the
prosecution relies on the statement as being true it is confession and if
the statement is relied on because it is false it is admission. In criminal
cases a statement by accused, not amounting to confession but giving rise to
inference that the accused might have committed the crime is his admission.
Only voluntary and direct acknowledgment of guilt is confession. In a statement
recorded by the Magistrate, the accused did not admit his guilt in terms and
merely went on stating the fact of assault on the deceased by mistake. The
Supreme Court held that such statement could not be used against the accused
as a Confession. A statement which may not amount to a confession may still be
relevant as an admission.
The definition attempted by the Privy Council has found favour with the Supreme
Court in Pakala Narayan Swami v. Emperor over two scores. Firstly, that the
definition is that it must either admit the guilt in terms or admit substantially all
the facts which constitute the offence, and secondly, that a mixed up statement
which, even though contains some confessional statement, will still lead to
acquittal, is no confession.
The confession comprised of two elements : (a) an account of how the accused
killed the woman and (b) an account of his reasons for doing so. The former
elements being inculpatory and latter exculpatory. In Aghnoo Nagesia v. State of
Bihar when a statement in FIR given by an accused contains incriminating

materials and it is difficult to sift the exculpatory portion therefrom, the whole of
it must be excluded from evidence.
Forms of Confession
A confession may occur in any form. It may be made to the court itself, when it
will be known as judicial confession or to anybody outside the court, in which
case it is called an extra-judicial confession. It may even consist of conversation
to oneself, which may be produced in evidence if overheard by another.
Judicial Confession
Judicial confessions are those which are made before a magistrate or in court in
the due course of legal proceedings. A is accused of having killed G. He may,
before the trial begins confess the guilt before some magistratae who may
record it in accordance with the provisions of Section 164, Cr.P.C. At the
committal proceedings before the magistrate or at the trial before Session Judge,
A may confess his guilt. All these are Judicial confessions. A judicial confession
has been defined to mean plea or guilty on arrangement (before a tribunal) if
made freely by a person in a fit state of mind.
Extra Judicial Confession
Extra Judicial confessions are those which are made by the accused elsewhere
than before a magistrate or in court. An 'extra Judicial Confession' can be made
to any person or to a body of persons. 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. 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.
An unambiguous extra judicial confession has got value of high probability
because this type of confession is made by that person who had committed the
crime and it will be taken into consideration if it is free from doubt and its
untruthfulness is free from any doubt. But for confession made about charge in
question the court has to satisfy itself that the confession voluntary and the
confessions should not have been caused by inducement, threat or promise of
the confession should not have been taken under the circumstances which came
under perview of Sec.25 or 26.
Before accepting the extra judicial confession, it should be seen that it is not
made under unfair or colleteral notions. For this the court has to enquire all the
relevant facts, such as to whom the confession was made, the time and place of
making confession and the phraseology used by the accused.
Section 24. 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 th
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 supposing that by m aking it he would gain
any advantage or avoid any evil of temporal nature in reference to the
proceeding against him.
Principle underlying Section 24.
The ground upon which confessions are received in evidence is the presumption
that no person will voluntarily make a statement which is against his interest
unless it be true. But the force of the confession depends upon its voluntary
character. There is always a danger that the accused may be led to incriminate
himself falsely.
Voluntary and non-voluntary confession
The confession of an accused may be classified as voluntary and non-voluntary. A
confession to the police officer is the confession made by the accused while in
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
charge 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 supposing that by making ti 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.
Confession irrelevant.-- If a confession comes within the four corners of Section
24 it is irrelevant and cannot be used against the maker.
The ingredients of Section 24.-- To attract the prohibition enacted in Section 24
the following facts must be established :
(1)That the statement in question is a confession,
(2)that such confession has been made by the accused,
(3)that it has been made to a person in authority,
(4)that the confession has been obtained by reason of any inducement, threat or
promise, proceeding from a person in authority,
(5)such inducement, threat or promise must have reference to the charge againt
the accused, and

(6)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
supposing that by making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him.
(A)Confession caused by inducement, threat or promise. -- The term of
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. Before a confession can be received as such, it must be shown that it
was freely and voluntarily made. Thus it is clear that if threat or promise from a
person in authority is used in getting a confession it will not be taken into
evidence.
(B)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. 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.
(C)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. Mere exhortation to speak the truth in name of God cannot in itself
amount to an inducement.
(D)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
(and not the court) reasonable for supposing that by making the confession he
would gain an advantage or avoid an evil of the nature of contemplated in the
section. Consequently the mentality of the accused has to be judged and not
that of the person in authority.
Section 25.-- 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.
The principle upon which the rejection of confession made by an accused to a
police officer or while in the custody of such officer is found is that a confession
thus made or obtained is untrustworthy. The broad ground for not admitting
confessions made to a police officer is to avoid the danger of admitting a false
confession. The police officer in order to secure conviction in a case very often
puts the person so arrested to severe torture and makes him to confess a guilt
without having committed it and when such steps are taken there is impunity for
the real offender and great encouragement to crime. Section 25 lays down that
no confession made to a police officer shall be proved as against person accused
of an offence.

It must be borne in mind that Section 25 of the Evidence Act excludes only
confessions. All statements that do not amount to confessions are not excluded
by Section 25 of the Evidence Act and can be brought on record and proved
against any accused.
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 custody of a
police officer, unless it be made in the immediate presence of a Magistrate, shall
be proved as against such person.
The object of Section 26 of the Evidence Act is to prevent the abuse of their
power 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
Magistrate.
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.
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. This section 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.
Section 26 and 27 compared
Though the section is in the form of a proviso to Sec.26, these two sections do
not deal with evidence of the same character. Section 26 bans confession to
police altogether, but S. 27 lets in a statement which leads to a crucial discovery
whether it amounts to confession or not. Under Section 26 a confession made in
the presence of a Magistrate is wholly provable, whereas Section 27 permits only
the part of the statement which leads to the discovery of fact. The scope of the
section was explained by the Privy Council in Pulukari Kotaya v. Emperor.
A number of accused persons were prosecuted for rioting and murder. Some of
them were sentenced to death and some to transportation for life. They
appealed to the Privy Council on grounds, among others, that the statements of
some of them were admitted in violation of Section 26 and 27. The statement of
one of them was : About 14 days ago I, Kottaya, and people of my party lay in
waitfor Sivayya and others.... We all beat Sivayya and Subayya to death.
Ramayya who was in our party received blows on his hands. He had a spear in
his hands. He gave it to me then. I hid it and my stick in the rick of my village. I
will show if you come. We did all this at the instance of Pulukuri Kottya. Another

accused said : I stabbed Sivayya with a spear. I hid the spear in a yard in my
village. I will show you the place. The relevant articles were produced from their
respective places of hiding.
The High Court admitted the whole of the above statement. High Court held that
unless the whole of the statement is admitted, it would be difficult to connect the
articles produced with the offence, the only connecting link being the confession
statement.
The Privy Council pointed out that the case was wrongly decided. The result of
the decision was to read in Section 27 something which is not there and admit in
evidence a confession barred by Section 26.
Explaining the relationship between Section 26 and 27 and the bar imposed by
Section 26, their Lordship said :
That ban was presumably inspired by the fear of the Legislature that a person
under police influence might be induced to confess by the exercise of undue
pressure. But if all that is required to lift the ban be the inclusion in the
confession of information relating to an object subsequently produced, the ban
will lose its effect. On normal principles of construction their Lordships think that
the proviso to Section 26 added by Section 27, should not be held to nullify the
substance of the section. In their Lordship's view it is fallacious to treat the fact
discovered as equivalent to the object produced; the fact discovered embraces
the place from which the object is produced ant the knowledge of accused as to
this, and the information given must relate distinctly to this fact. Information as
to the past use of the object produced is not related to its discovery. Information
supplied by a person in custody that I will produce a knife concealed in the roof
of my house does not lead to the discovery of a knief. It leads to the discovery
of a fact that a knife is concealed in the house of the informant to his knowledge,
and if the knife is concealed in the house of the informant to his knowledge, and
if the knief is proved to have been used in the commission of the offence, the
fact discovered is very relevant. But if to the statement the words are added
with which I stabbed A these words are inadmissible since they do not relate to
the discovery of the knief in the house of the informant.
Explaining the scope of the section in general terms, their Lordships observed :
Section 27, which is not artistically worded, provides an exception to the
prohibition imposed by the preceding section, and enables certain statements
made by a person in police custody to be proved. The condition necessary to
bring the section into operation is that discovery of a fact in consequence of
information received from a person accused of any offence in the custody of
police officer must be deposed to, and thereupon so much of the information as
relates distinctly to the fact thereby discovered may be proved. The section
seems to be 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. Normally the section is brought into operation when a person in police

custody produces from some place of concealment some object, such as, a dead
body, a weapon or ornaments, said to be connected with the crime of which the
informant is accused.
Referring to the facts of the case their Lordship held that the whole of statement
except the passage, I hid it(a spear) and my stick in the rick in the village. I will
show if you come is inadmissible. Referring to the statement of the other
accused, that I stabbed Sivayya with a spear. I hid the spear in a yard of my
village. I will show you the place, their Lordships held that the first sentence
must be omitted.
In Bodh Raj v. State of J & K. it was held that only the information that definitely
relates to the facts discovered is admissible. But the information should not be
truncated in such manner as to make it insensible. The information must be
recorded. Where it is not recorded, the exact information must be adduced
through evidence.
In State of Karnataka v. David Razario, it was held that the articles proved to
have been stolen by the accused were of very small value, articles of higher
value remained untouched in the house of the deceased, whether this could be
exculpatory circumstance in a charge of murder with robbery, or whether such
evidence could be sole basis of conviction, question left unanswered.
In Pandurang Kalu Patil v. State of Maharashtra, it was held that where the
accused disclosed : I have kept the firearm concerned behind the old house
under a heap of wood. The same was recovered from the place. The court said
that the fact discovered was not the gun but the fact that the accused had
concealed it at the place from where it was found according to his disclosure.
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 because it 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.
Section 29 lays down that if a confession is relevant, that is if it is not excluded
from being proved by any other provisions of Indian Evidence Act, it cannot be
irrelevant 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 be used against him.
Section 29 lays down that if a confession is not excluded by section 24.25 or 29 it
will not be excluded on the ground of the promise of secrecy or of deception or of
being drunk, or for being made in answer to question or without that it will be
used against him in evidence.

DYING DECLARATION
Section 32. Cases in which statements of relevant fact by person who is dead or
cannot be found etc. is relevant.-- Statement written or verbal, or relevant facts
made by a person who is dead, or who cannot be found, or who has become
incapable of giving evidence, or whose attendance cannot be procured without
an amount of delay or expense which, under the circumstance of the case
appears to the Court unreasonable, are themselves relevant facts in the
following cases:
(1) When it relates to cause of death. -- When the statement is made by a person
as to the cause of his death, or as to any of the circumstances of the transaction
which resulted in his death, in cases in which the cause of that person's death
comes into question.
Such statements are relevant whether the person who made them was or was
not, at the time when they were made, under expectation of death, and
whatever may be the nature of the proceeding in which the cause of his death
comes into question.
Illustration
(a) The question is whether A was murdered by B; or
A dies of injuries received n a transaction in the course of which she was
ravished. The question is, whether she was ravished by B; or
The question is, whether A was killed by B under such circumstances that a suit
wold lie against B by A's widow.
Statements made by A as to cause of his or her death, referring respectively to
the murder, the rape and the actionable wrong under consideration are relevant
facts.
Dying Declaration is admissible in evidence being a hearsay evidence. This piece
of hearsay evidence is admissible as an exception to the general rule of evidence
that hearsay evidence is no evidence in eye of law and it should be discarded as
general rule because the evidence in all cases must be direct.
Requirements of Section 32.
The section is one of those3 provisions that provide exceptions to the principle of
excluding hearsay evidence. The principle of the section is that a person who has
the first-hand knowledge of the facts of a case, but who, for reasons stated in the
section, such as death or disability, is not able to appear before the court, then
his knowledge should be transmitted to the court through some other persons.

Dying Declaration or statements relating to cause of death

Such a statement can be proved when it is made by a person as to the cause of
his death, or as to any of the circumstances of the transaction which resulted in
his death. The statement will be relevant in every case or proceeding in which
the cause of that person's death comes into question. The clause further goes on
to say that such statements are relevant whether the person who made them
was or was not, at the time when they were made, under expectation of death
and whatever may be the nature of the proceeding in which the cause of death
comes into question.
The clause incorporates the principle of English law relating to what are popularly
known as dying declarations but marks a remarkable departure from them.
Dying declaration in English Law
A 'dying declaration' means the statement of a person who has died explaining
the circumstances of his death. According to English law the statement is
relevant only when the charge is that of murder of manslaughter.
The basis of the rule as to dying declaration was explained in the early case of R
v. Woodcock : explained the general principle :
The general principle on which this species of evidence is admitted is, that they
are declarations made in extremity, when the party is at the point of death, and
when every hope of this world is gone; when every motive of falsehood is
silenced, and the mind is induced by the most powerful considerations to speak
the truth.
While the principle stated in this case relating to the basis on which dying
declarations are given credit has been approved, the subsequent cases quite
clearly emphasise that declarations made without appreciation of impending
death would not be admitted.
The Supreme Court in its decision in P. V. Radhakrishna v. State of Karnataka,
noted this in the following words : The principle on which a dying declaration is
admitted in evidence is indicated in Latin maxim, nemo moriturus proesumitur
mentiri, a man will not meet his maker with a lie in his mouth. Explaining the
word immediate which was inserted by his Lordship said : Immediate death
must be construed in the sense of death impending, not on that instant, but
within a very, very short distance indeed. In other words, the test is whether all
hope of life has been abandoned so that the person making the statement thinks
that death must follow. Applying this principle to the facts, his Lordship held
that the words I shall go should not be taken alone ant the effect of the whole
sentence was that she was under the hopeless expectation of death.
An attempt was made in Kusa v. State of Orissa, before the Supreme Court to
exclude a declaration on the ground of incompleteness. The statement was
recorded by a doctor. It was clear in all respects. To wind up the statement the
doctor asked the injured if he had anything else to say. He lapsed into

unconsciousness without answering this question. The court held that the
statement was not incomplete. It was rightly admitted.
Dying declaration under clause (1) of s. 32
Anticipation of death not necessary
One of the most important departures from English law that the Evidence Act
marks is that here it is not necessary that the declarant should be under any
expectation of death. If the declarant has in fact died and the statement explains
the circumstances surrounding his death, the statement will be relevant even if
no cause of death had arisen at the time of the making of the statement. The
statutory authority is S.32(1) itself and the Judicial authority is the leading
decision of the Privy Council in Pakala Narayan Swami v. Emperor. The accused
was convicted of murder and sentenced to death. The evidence against him was,
firstly,his indebtedness to the deceased, secondly, the statement of the
deceased of his wife that he was going to the accused, thirdly, the steel trunk
was purchased by a Dhobie (washerman) for and on behalf of the accused. Some
other details about the arrival of the deceased at the accused's house, discovery
of blood-stained clothes and transportation of the trunk of the station were also
proved. The accused appealed to the Privy Council on the grounds that the
statement of the deceased to his wife that he was going to the accused was
wrongly admitted under S.32(1). The court said, A variety of questions has been
mooted in the Indian Courts as to the effect of this section. It has been
suggested that the statement making it must be at any rate near death, that the
circumstancescan only include acts done when and where the death was
caused.... Statements made by the deceased that he was proceeding to the spot
where he was in fact killed, or as to his reasons for so proceeding, or that he was
going to meet a particular person or that he had been invited by such person to
meet him, would each to them be circumstances of the transaction, and would
be so whether the person was unknown, or was not the person accused. Such a
Statement might indeed be exculpatory of the person accused.
The Supreme Court has emphasised the need for effort by courts, as far as
possible, to include a statement within the scope of the S.32(1). Hence,
statements as to any of the circumstances of the transaction which resulted in
the death would be included.
Statement of accused under S.162 Cr.P.C.
But the statement of the accused to the police that the deceased arrived at his
place was held to be not relevant by virtue of Sec.162 of Cr.P.C. This section
provides that a statement made by any person to a police officer in the course of
an investigation cannot be used against him in any inquiry or trial.
Proximity of time between statement and death
There has to be proximate relationship between the statement and the
circumstances of death. In Rattan Singh v. H.P. the statement of a woman made
before the occurrence in which she did that the accused was standing near her

with a gun in his hand and this fact being one of the circumstances of the
transaction was held to be admissible as a dying declaration being proximate in
point of time and space to the happening.
Acceptance of Pakala ruling by Supeme Court
The principles thus laid down relating to the relevancy of a dying declaration
were accepted by the Supreme Court in Kaushal Rao v. State of Bombay. There
were two rival factions of workers in a millarea in Nagpur. Rival factions even
attacked each other with violence. In one such violent attack one Baboo Lal was
attacked each other with violence. In one such violent attack one Baboo Lal was
inflicted a number of wounds in a street at about 9 p.m. He was taken to a
hospital by his father and others reaching there at 9.25. On the way he told the
party that he was attacked by four persons with swords and spears two of whom
he identified as Kaushal and Tukaram. The doctor in attendance immediately
questioned him and recorded his statement in which he repeated the above two
names. A sub-Inspector also questioned him and noted his statement to the
same effect. By 11.35 p.m. A magistrate also appeared and after the doctor had
certified that the injured was in a fit condition to make the statement, the
magistrate recorded the statement which was again to the same effect. He died
the next morning.
On the basis of these declarations recorded in quick succession by independent
and responsible public servants and as corroborated by the fact that both the
named persons were absconding before they were arrested, the trial judge
sentenced Kaushal to death and Tukaram to life imprisonment. The High Court
acquitted Tukaram altogether because of the confusion caused by the fact that in
the dying declaration he was described as a teli, whereas Tukaram present
before the court was a kohli and in the same locality there lived four persons
bearing the same name some of whom were telis. But the conviction of Kaushal
was maintained and on appeal, the Supreme Court also affirmed the conviction,
did not consider it to be absolute rule of law that a dying declaration must be
corroborated by other evidence before it can be acted upon. The learned judge
had to face the following observation of the Supreme Court itself.
It is settled law that it is not safe to convict an accused person on the evidence
furnished by a dying declaration without further corroboration because such a
statement is not made on oath and is not subjected to cross examination and
because the maker of it might be mentally and physically in a sate of confusion.
Need for Corroboration
The learned judge referred to the circumstances which may detract from the
value of a dying declaration, such as the fact that it was not made at the earliest
opportunity, or that the statement was put into the mouth of the witness by
interested parties or was the result of leading questions, and added that subject
to these qualifications there is no absolute rule of law, or even a rule of
prudence, that a dying declaration unless corroborated by other independent
evidence, is not fit to be acted upon and made the basis of a conviction.

In P.V. Radhakrishna v. State of Karnataka, emphasing this point further still the
Supreme Court observed that a dying declaration can be used as a sole basis of
conviction. A person on death bed is in a position so solemn and serene that it is
equal to the obligation under oath. For this reason the requirement of oath and
cross-examination are dispensed with. The victim(declarant)being the only eyewitness, the exclusion of his declaration may defeat the ends of justice. The
court has to be on its guard and see for itself that the declaration is voluntary
and seems to reflect the truth.
Where there are more than one dying declaration
In Kishan Lal v. State of Rajasthan the oral dying declaration was made
her(deceased) to her father, uncle and grandfather. Names of the accused
mentioned therein. However she could not mention the name of accused in
second dying declaration made before magistrate 5 days after on the ground
that she could not recognise any accused because of fire darkness coming to her
eyes. Second dying declaration not only giving to conflicting version but there
was interse discrepancy in deposition of witness given in support of dying
declaration; it was held by Supreme Court that the conviction based on such
conflicting and discrepant dying declaration was liable to be set aside.
Some General Propositions : Factors in reliability
The Court laid down the following general propositions :
1. There is no absolute rule of law that a dying declaration cannot be the sole
basis of conviction unless corroborated.
2. Each case must go by its own facts.
3. A dying declaration is not a weaker kind of evidence than any other piece of
evidence.
4. A dying declaration which has been properly recorded by a competent
magistrate, that is to say, in for of questions and answers, and, as far as
practicable in words of the maker of declaration of reliable. In State of Karnataka
v. Shariff, where the dying declaration was not recorded in question-answer from,
it was held that it could not be discarded for that reason alone. A statement
recorded in he narrative may be more natural because it may give the version of
the incident as perceived by the victim.
5. To test the reliability of a dying declaration, the court has to keep in view the
circumstances like the opportunity of the dying man of observation, for example,
whether there was sufficient light if the crime was committed at night; whether
the capacity of the declarant was not impaired at the time of the statement, that
the statement has been consistent throughout; that the statement has been
made at the earliest opportunity and was not the result of tutoring by interested
parties. The statement of the deceased in this case satisfied all these conditions
and therefore, the Supreme Court held that it was rightly acted upon by the High
court in convicting the appellant.

Where for some unexplained reason the person who noted down (scribe) the
statement was not produced, the declaration was not accepted as an evidence.
Statement made to or implicating relatives
The Supreme Court laid down in a case that a dying declaration made to the
relatives of the deceased, when properly proved can also be trusted.
F.I.R. As dying declarations and statements recorded by police
Where an injured person lodged the F.I.R. And then died, it was held to be
relevant as a dying declaration. A declaration noted down by an Assistant SubInspector even before any F.I.R. Was lodged was held by the Supreme Court to be
acceptable. In the circumstances of the case, the court was not able to find any
fault in the A.S.I. In not getting the statement recorded by a magistrate. There
was also no reason to doubt the correctness and authenticity of the dying
declaration. There is a clear provision in S. 162(2) of the Cr.P.C. Saving the
validity of such statements. Thus technically, a dying declaration recorded by
police alone is relevant both under S.32(1) and by virtue of the saving of such
statement under S.162(2) of the Cr.P.C. but even so the Supreme Court had laid
down that it is better to leave such a statement out of consideration unless the
prosecution satisfies the court as to why it was not recorded by a magistrate or a
doctor.
In State of Karnataka v. Shariff, the Supreme Court observed that a dying
declaration recorded by police cannot be discarded on the ground alone. There is
no requirement of law that a dying declaration must necessarily made to a
magistrate.

PRESUMPTION OF FACTS
Sec 114. -- Court may presume existence of certain facts.-- The Court may
presume the existence of any fact which it thinks likely to have happened, regard
being had to the common course of natural events, human conduct and public
and private business, in their relation to the facts of the particular case.
Illustrations
The Court may presume. (a) that a man who is in possession of stolen goods soon after the theft is either
the thief or has received the goods knowing them to be stolen unless he can
account for his possession.
But the Court shall also have regard to such facts as the following, in considering
whether such maxims do or do not apply to the particular care before it;

as to illustration (a)- a shopkeeper has in his till a marked rupee soon after it was
stolen, and cannot account for its possession specifically but is continually
receiving rupee in the course of his business.
Presumption, meaning of. -- A presumption is a rule of law that attaches definite
probative value to specific facts or directs that a particular inference as to
existence of one fact not actually known shall be drawn from a fact which is
known and proved. It furnishes prima ficie evidence of the matter of which it
relates and relieves the party of the duty of presenting evidence until his
opponent has introduced evidence to rubut the presumption. It raises such a
high degree of probability in its favour that it must prevail unless clearly met and
explained. Presumptions hold the field in the absence of evidence unless clearly
met and explained. Presumption hold the filed in the absence of evidence but
when facts appear presumptions go back. Presumptions may be either of law or
fact and when of law may be either conclusive or rebuttable but when of fact are
always rebuttable. Mixed presumption are those which are partly of law and
partly of fact.
Court may presume the existence of certain facts.-- If a fact is likely to have
happen in the common course of natural events according to general human
conduct, according to public and private business, in their relation to the facts of
the particular case, the court may presume the existence of such fact. This
section gives the courts very wide power. If a fact must happen in the ordinary
course of events the court may presume it and the party denying its existence
has to rebut it.
In a criminal case the burden of proof always lies on the prosecution, for the
accused is to be presumed to be innocent. The illustration (a) is an exception to
this general rule. This illustration lays down that as soon as it it has been
established that the prisoner was found in possession of stolen goods shortly
after they were stolen, it may be presumed that he is, either a thief or has
received the goods knowing them to be stolen, unless he can account for his
possession.
The presumption permitted by illustation (a) does not arise until the prosecution
has established the following facts :-(1) The ownership of the article. -- Before a presumption may be raised under
illustration (a) against an accused to the effect that he is a thief or has received
an article knowing it to be stolen, it must be proved that the article which was
recovered from his possession, belonged to somebody else and was in his
possession sometimes back.
(2) The commission of theft. -- The second ingredient to be proved by the
prosecution in order to give rise to a presumption under illustration (a) is the
proof of theft of the article recovered from the possession of the accused. The
prosecution must prove that a theft was committed in respect of the property
recovered from the possession of the accused.

In the case of Union Territory of Goa v. B. D. D'Souza and others, the accused was
unable to give any evidence about the stolen things. The presumption can be
made under Section 114. The accused were guilty under Section 411, I.P.C. But
from the fact that the stolen article was recovered from the accused after one
month of theft, it shall not be presumed that the accused had committed murder.
(3) Recent Possession. -- Mere recovery of stolen property from the possession of
accused does not give rise to presumption under illustration (a). For presumption
under illustration (a) the possession must be recent. The presumption permitted
to be drawn under section 114, illustration (a) has to be read along with the
important time factor. If article are found in the possession of a person soon after
the theft, presumption of guilt may be permitted. But if a thing is recovered long
after no presumption can be drawn.
Whether the possession is recent or not must be determined by the nature of the
articles stolen. If the article is of a nature likely to pass from hand to hand, the
periods elapsed between the committing of theft and the recovery must be very
short. If the period is not very short no presumption can be raised that the
person in possession is a thief, or that he received the article knowing it to be
stolen. But if the article is of such a nature that it cannot change hands easily a
longer period may be taken to be recent. In such cases the prosecution has to
prove that the accused stole away the article himself or he received it knowing it
to be stolen.
(4) Possession must be exclusive.-- In order to raise the presumption legitimately
the possession of stolen property should be exclusive as well as recent. Finding
of it on the person of the accused or in a locked up house in a room or in a box of
which he kept and the key of which he was in exclusive possession would be a
fair ground fro raising the presumption under this illustration; but if the articles
stolen were only found in house or in a room in which he lived jointly with others
or in an open box to which others have access, no definite presumption of his
guilt could be made.
In Trimbak v. State of M.P., court observed that, when the filed from which the
ornaments were recovered was an open one, and accessible to all and sundry, it
is difficult to hold positively that the accused was in possession of these articles.
The fact of recovery by the accused is compatible with the circumstance of
somebody else having placed the articles there and of the accused somehow
acquiring knowledge about their hereabouts and that being so, the fact of
discovery cannot be regarded as conclusive proof that the accused was in
possession of these articles.
Conviction for offences other than theft on recovery.-In Nagappa Dondiba v. State of Karnataka It was held that the recovery of
ornaments of deceased which she was wearing before the murder, at the
information of accused cannot connect the accused with murder unless some
evidence to connect him with murder. No presumption of murder can be drawn
under illustration (a)

Presumption of murder by recovery of article of deceased.-- In Wasim Khan v.

State of U.P., the question as to whether presumption should be drawn under
section 114(a) is a matter which depends on the evidence and circumstances of
each case. The nature of recovery, the matter of their acquisition by the owner ,
the manner in which the article were dealt with by the accused, the place of
recovery, the length of period of recovery, the explanation of the accused or
some of them. A recent and explained possession of stolen articles of deceased
can be well be basis of presumption of murder.
Accused's Explanation.-The following proposition regarding the burden of proof to criminal trial may be
deduced from the decided cases. (1) That in a criminal trial the onus of proving
the main issue is always on the prosecution, (2) that under illustration (a) to this
section the Court may, but is not obliged to make the presumption therein
mentioned, (3) that even if the Court makes the presumption under illustration
(a) the onus of the general issue is still on the prosecution, (4) that it is not the
law that if the accused fails to account for his possession of the goods alleged to
be stolen, he must be convicted, if the other proved facts of the case do not
prove his guilt, (5) that the accused is entitled to acquittal if he can give
explanation which were reasonably true although the court may not be
convinced of its truth. (6) that the accused is not required to prove his
explanation by adducing evidence, (7) that the accused need not give any
explanation unless he is asked to account for his possession.

ACCOMPLICE EVIDENCE

An accomplice means a person who has taken part in the commission of a crime.
When an offence is committed by more than one person in concert, every one
participating in its commission is an accomplice. Conspirators lay their plot in
secret, they execute it ruthlessly and do not leave much evidence behind. Often,
therefore, the police has to select one of them for the purpose of being
converted into a witness. He is pardoned subject to the condition that he will
give evidence against his former partners in the crime. He is then known as an
accomplice, turned witness or an approver. He appears as a witness for the
prosecution against the accused person with whom he acted together in the
commission of the crime. The question is, to what extent his evidence or
testimony can be relied upon to convict his former associates. What is the value
of evidence of a former criminal turned witness?
Two provisions in the Act touch this problem. Section 133 categorically declares
that an accomplice is a competent witness and the Court may convict on the

basis of such evidence and the conviction will not be illegal simply because it
proceeds upon the uncorroborated testimony of an accomplice. The other
dealing with the matter is in the illustration (b) to section 114, which says that
the court may presume that an accomplice is unworthy of credit unless
corroborated in material particulars. These provisions should first be reproduced.
S.133. Accomplice. -- An accomplice shall be a competent witness against an
accused person; and a conviction is not illegal merely because it proceeds upon
the uncorroborated testimony of an accomplice.
S.114. Illustration (B).-- The court may presume that an accomplice is unowrthy
of credit, unless he is corroborated in material particulars.
The apparent contradiction between these two declarations should first be
resolved. Section 133 is a clear authorisation to the courts to convict on the
uncorroborated testimony of an accomplice, but since such a witness, being
criminal himself, may not always be trustworthy, the court are guided by the
illustration appended to Section 114 that, if it is necessary the court should
presume that he is unreliable unless his statement are supported or verified by
some independent evidence.
Categories of Accomplices.-In order to be an accomplice, a person must participate in the commission of the
same crime. This participation may be done in various ways. The modes of
taking part with a crime are treated under the head of :(1) Principals in the first and second degree. -- A principal of the first degree is
one who actually commits the crime. A principal of the second degree is a person
who is present and assists in the perpetration of the crime. These persons are
undoubtedly under all the circumstances accomplice.
(2) Accessories before the facts. -- An accessory before the fact is one who
counsels, incites, connives at, encourages or procures the commission of the
crime. Of these persons, those who counsel, incite, encourage or procure the
commission of the crime are certainly accomplices.
(3) Accessories after the fact. -- Every person is an accessory after the fact to a
felony, who knowing that a felony has been committed by another person
receives, comforts or assists him in order to escape from punishment; or rescues
him from arrest, or having him in custody for the felony, intentionally and
voluntarily allows him to escape, or opposes his arrest. Three conditions must
unite to render one an accessory after the fact: (1) the felony must be complete;
(2) the accessory must have the knowledge that the felony has been committed;
(3) the accessory must harbour or assist the principal felon.
Corroboration as Rule of Caution
Once it is determined that the person who has appeared as a witness in fact an
accomplice, the question then arises as to what value is to be attached to his

evidence, namely, whether it should be acted upon in itself or some independent

verification should be thought of his statements. It has been observed from the
earliest times as a rule of caution which has now become virtually a rule or law,
that the evidence of an accomplice should stand the test of verification at least
in main points. This is known as corroboration.
The reasons why corroboration has been considered necessary are that :(1) he has been criminal himself, and, therefore, his testimony should not carry
the same respect as that of a law-abiding citizen.
(2) he has been faithless to his companions and may be faithless to the court
because he has motive to shift the guilt from himself to his former companions,
and
(3) if he is an approver, he has been favoured by the State and is therefore, likely
to favour the state.
These reasons dictate the necessity for corroboration.
Once corroboration in material particulars is found, the testimony of an
accomplice can be the basis of conviction.
The meaning and nature and extent of corroboration were explained by the court
of Criminal Appeals in R v. Baskerville :
The case involved an indecent assault upon two young boys with their consent at
the residence of the accused. Thus both the boys were accomplices. The only
way to corroborate the evidence of one was to refer to the statement of the
other. Should the evidence of one accomplice be corroborated with the evidence
of another accomplice. The court held that the general principle is against it.
In Bhuboni Sahu v. The Emp., eight persons were prosecuted for a murder; four
of them were acquitted. Of the remaining, one appealed to the Privy Council. The
evidence against the appellant consisted of (a) evidence of an accomplice who
had taken part in the murder and had become an approver, (b) the confession of
another accused person implicating himself and the appellant, and the
recovery of a cloth which the deceased was wearing and a Khantibadi in
circumstances which were taken to verify the evidence of the accomplice
The appellant was acquitted by the court. The Court Observed : The combine
effect of Section 133 and 114, Illustration (b) may be stated as follow:
According to the former which is a rule of law an accomplice is competent to give
evidence and according to the latter which is a rule of practice is almost always
unsafe to convict upon his testimony alone. Therefore though the conviction of
an accused on the testimony of an accomplice cannot be said to be illegal yet
the court will, as a matter of practice, not accept the evidence of such a witness
without corroboration in material particular. The law may be stated in the words
as in R v. Baskerville.

There is no doubt that the uncorroborated evidence of an accomplice is

admission in law. But it has been long a rule of practice at common law for the
Judge to warn the jury of the danger of convicting and in the prisoner on the
uncorroborated testimony of an accomplice, and in the discretion of the Judge, to
advise them not to convict upon such evidence, but the Judge should point out to
the jury that is within their legal province to convict upon such unconfirmed
evidence.
In Narayan Chetanram Chaudhary v. State of Maharashtra, accused committed
offence of robbery and murder. All deaths, except of a child, were caused by the
A1, child was killed by A2. Raju, PW 2 actively participated and facilitated the
commission of the crime. The murders were apparently committed to wipe out all
evidence of robbery and committed by the accused persons. Accused were
arrested from different places. In the identification parades they were identified
by various witnesses. After the commitment but before the commencement of
the trial Raju expressed his wish to make a confessional statement. The trial
court accepted the application. The accused Raju was tendered pardon on the
condition that he shall make a full and true disclosure of the whole of the
circumstances within his knowledge relating to the offence. High Court also
accepted the reference.
The learned counsel for the appellants argued that as the statement of the
approver was recorded after an unexplained prolonged delay, the same could not
be made the basis for conviction of the accused. To this it was held that,
Otherwise the words of the section at any time after commitment of the case
but before judgment is passed are clearly indicative of the legal position which
the legislature intended. No time limit is provided for recording such a statement
and delay one of the circumstances to be keep in mind as a measure of caution
for appreciating the evidence of the accomplice. Human mind cannot be
expected to be reacting in a similar manner under different situations. Any
person accused of an offence, may, at any time before the judgment is
pronounced, repent for his action and volunteer to disclose the truth in the court.
Repentance is a condition of mind differing from person to person and from
situation. Court, therefore, do not find any substance n the submissions of the
learned defence counsel that as the statement of the approver was recorded
after prolonged delay, no reliance could be placed upon it.
Learned counsel further contended that conviction based upon the
uncorroborated testimony of the approver is neither safe nor proper particularly
in a case where extreme penalty of death is awarded. The Court said after
making reference to Bhuboni Sahu v. R. ; R v. Basherville etc. the court said that
We have minutely scrutinized the evidence of PW2 and the corroborative
evidence noticed by both that trial court as well as High Court and find no
substance in the submission of the learned counsel for the appellants that the
testimony of PW 2 is vivid in explanation and inspires full confidence of the court
to pass the conviction on the appellants for the offences with which they were
charged. The corroborative evidence to the aforesaid statement leave no doubt

in the mind of the court regarding the involvement of the appellants in the
commission of the crime for which they have been convicted and sentenced.
Nature and extent of corroborations
As to the nature and extent of corroboration required, cited the opinion in R. v.
Stubbs, namely, that the evidence of an accomplice must be confirmed not only
as the circumstances of the crime, but also as to the identity of the prisoner.
Corroboration in Rape Cases
The case is not directly on the subject of accomplice, but is on the point of
corroboration. Corroboration is a common point between the victim of rape and
an accomplice because through the woman who has been raped is not an
accomplice, but her evidence has been treated by the courts on somewhat
similar line. Her evidence requires corroboration the same way as that of an
accomplice.
RELEVANCY OF THE TAPE RECORDED CONVERSATION

Meaning of documentary evidence

The expression documentary evidence, as it is defined in section 3, means :
All documents produced for the inspection of the court; such documents are
called documentary evidence.
The expression document is defined in section 3 as follows :
Document means any mater expressed or described upon any substance by
means of letters, figures or marks, or by more than one of those means, intended
to be used, or which may be used, for the purpose of recording that matter.
Admissibility of Tape Recording. -- Tape recorded conversion is admissible. Tape
recording is document as defined in Section 3 of Evidence Act which stood on no
different footing than Photograph. They are relevant on satisfying the following
condition :
(i) The voice of the person alleged to be speaking must be identified by the
maker of the record or by other who know it.
(ii) Accuracy of what was actually recorded had to be proved by maker of the
record, and satisfactory evidence, direct or circumstantial,had to be there so as
to rule out the possibility of tampering with the record,
(iii) The subject matter recorded had to be shown to be relevant according to the
rules of relevancy in the Evidence Act.
Recorded Tapes

With regard to the relevancy of a recorded tape, it has been said that there is no
reason in principle why the recording in some permanent or semi-permanent
manner of human voice (or other sounds) which are relevant to the issue to be
determined, provided that it furnishes information, cannot be a document. They
become media of communication as superior substitute for words. It has been
observed in an Australian case :
If it should be established by oral evidence that there was a mechanical
electronic recorder in operation at a material time which was capable of and did
record accurately sounds as they occurred, and other oral evidence of
identification, and non-interference, it appears that the material containing such
recording is properly admissible in evidence. There is no distinction in principle
from the reception into evidence of a photograph of a street accident taken at
the time of its occurrence which is sworn to by an eye-witness as being a true
representation of the scene at the relevant time. In that case light waves, and in
the case of a recording, sound waves, have been captured and preserved by
scientific means.
These principles have generally been followed by the Supreme Court of India.
Tape -recorded conversations came before the Supreme court mostly in cases
involving corruption by officials in receiving or attempting to receive bribes. One
such case is R. M. Malkani v. State of Maharashtra.
The accused, who appealed to the Supreme court against his conviction, was the
coroner of Bombay. A doctor, who was running a nursing home, operated upon a
patient who afterwords died. It, being a post-operation death, became th subject
of post-mortem and inquest. The coroner persuaded the doctor to pay him a sum
of money if he wanted the report to be favourable to him. The payment was
arranged to be made through another doctor and the final meeting for this
purpose was to be settled by telephone call from the house of the other doctor.
The police commissioner was called with the tape-recording mechanism. This
was connected to the doctor's telephone and thus the most incriminating
conversation was recorded in the presence of the police officer.
The Bombay High Court held that the testimony of the two doctors required
corroboration and that the tape amply corroborated it. The decision was upheld
by the Supreme Court. Looked into the previous authorities.
This court in number of cases accepted conversation of dialogue recorded on
tape-recording machine as admissible evidence. In Nagree's case, the
conversation was between Nagree and Sheikh and Nagree was accused of
offering bribe to Sheikh.
In the Presidential Election case question were put to a witness that he had tried
to dissuade the petitioner from filing an election petition. The petitioner had
recorded on tape the conversation that took place between the petitioner and
the witness. The court admitted the recording to contradict the witness. The tape
itself becomes the primary and direct evidence or what has been said and
recorded.

Dealing with the relevancy of such evidence the learned judge said :
Tape-recorded conversation is admissible provided, first, the conversation is
relevant to the matters in issue; secondly, there should be identification of the
voice; and thirdly, the accuracy of the tape-recorded conversation is proved by
eliminating the possibility of erasing the tape record. A contemporaneous tape
record of a relevant conversation is a relevant fact and is relevant under section
8 of the Act. It is also res gestae (part of the same transaction) and, therefore,
relevant under section6. It is also comparable to photograph of a relevant
incident and is, therefore a relevant fact under section7 of the Act.
Applying these principles to the facts of the case the learned judge had no doubt
that the conversation in question was relevant.
Still another case before the Supreme court involved the eviction of a tenant on
the ground of subletting. The finding of the Rent Controller that there was
subletting, was based upon a tape-recorded conversation between the tenant
and the husband of the landlady. The Court held that tape-recorded conversation
can only be relied upon as corroborative evidence of conversation deposed by
any of parties to the conversation. In the absence of any such evidence, the tape
cannot be used as an evidence in itself.
In a subsequent decision the Supreme Court has tightened the rule as to
relevancy of tape to this extent that it must be shown that after the recording
the tape was kept in proper custody. In that case the Deputy Commissioner had
left the tape with the stenographer. That was held to be sufficient to destroy the
authenticity of the tape. The supreme Court has further suggested that how the
cassette came into existence is an important consideration. The court rejected
tape-recorded evidence of an election speech because the tape was prepared by
a police officer and he was not able to explain why he had done so. The
candidate had denied that the tape was in his voice.