2021 YLR 2210
The courts in our country apply the following principles while appraising the evidence of extra-judicial confession:
(i) Extra-judicial confession is normally considered as a weak piece of evidence as it can be easily procured whenever direct evidence is not available.
(ii) An extra-judicial confession is not a direct evidence. It can be used against an accused only when it comes from unimpeachable sources. Further, it must be corroborated in material particulars through trustworthy evidence.
(iii) Since extra-judicial confession is a weak type of evidence, conviction on capital charge cannot be recorded in its basis alone.
(iv) There are three essentials to believe an extra-judicial confession: firstly, that the extra-judicial confession was in fact made; secondly, that it was made voluntarily and, thirdly, that it was truly made.
(v) In criminal cases great responsibility rests upon the courts to determine if the confession is voluntary and true or is lacking within the scope of either term „voluntary‟ and „true‟. If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary.
(vi) The extra-judicial confession must be received with utmost caution. The court should enquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot but be true. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the back of a human conduct. Why a person guilty of offence entailing capital punishment should at all confers. There could be a few motivating factors like: (a) to boast off, (b) to ventilate the suffocating conscience, and (c) to seek help when actually trapped by investigation. Where the accused had been fully trapped during the investigation, what is the nature and gravity of the offence involved, what is the relationship of the accused with the person before whom confession is made.
(vii) The status of the person before whom the extra judicial confession is made must be kept in view. A person may make confession before a third person to seek help from him. Help is sought when a person is sufficiently trapped and he feels that the other person is in a position socially or otherwise to provide him some relief. Extrajudicial confession of murder made by accused to witnesses who were neither respectable persons of locality nor enjoyed such a commanding position so as to have an access or influence on the police or the relatives of the deceased to get pardon for accused. In such situation, what prompted the accused to confess his guilt voluntarily without any duress, coercion or inducement leaves room for consideration.
(viii) Evidence of witnesses before whom accused made extra-judicial confession would not be worth reliance when witnesses exhibited unnatural and inhuman conduct after accused had made confession to them.
(ix) The Court should also look at the time lag between the occurrence and the confession and determine whether the confession was at all necessary.
x) Joint confession cannot be used against either of them.
(xi) Extra-judicial confession made by the accused when he is in the custody of the police is inadmissible in evidence. Article 38 of the Qanun-e-Shahadat Order, 1984 (the “QSO”), lays down that a confession made to a police officer shall not be proved against a person accused of any offence. The object of this rule is to discourage a police officer from extorting confession for showing efficiency by securing convictions. Under this Article a confession made to a police officer is to be ignored even if it was made in the immediate presence of a Magistrate, as the Article 38 is independent and is not controlled by Article 39.
(xii) Article 39 of the QSO deals with confessions which are made not to police officers but to persons other than police officers i.e. to a fellow prisoner, a doctor or a visitor and makes such confessions inadmissible, if they were made while the accused was in the custody of police officer. Articles 38 and 39 lay down different rules.
(xiii) As per Article 40 of the QSO, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the Appellant, under Article 40 ibid, relating to incriminatory articles is admissible.
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