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Challenging a Confession Statement

A woman is found dead in her apartment. It’s a cold blooded murder, seemingly using an axe. Next, one would expect that the police would arrest and beat the suspect mercilessly to extract a confession from him. It is generally believed that police first mercilessly beat the suspect to extract a confession, and then seek evidence to build their case based on that confession. In popular perception, it is uncommon for the police to first find evidence and then move upwards from there instead.

Section 25 of the Indian Evidence Act, 1872 prohibits confession statements made before police to be proved against the accused. This section was enacted because it is believed that police would use third degree to extract confession to solve their case. Therefore, confession in any form is considered a weak evidence.

But what if a recovery is subsequently made by the police on the basis of a such a confessional statement made by the accused in its custody? In such a case, only so much of that statement would be admissible in evidence that leads to the discovery of the fact, article and object. Section 27 of the Indian Evidence Act, 1872 essentially removes the presumed taint on confessions made before police officials in case such statement leads t the discovery of a fact, article or object. But the ‘taint’ is removed only qua the part of the statement that relates to the recovery of the said fact and not with respect to the entire statement.

Taking our example further, let’s assume that the confession leads to the discovery of an axe from a park at the instance of the accused. Then, the discovery of the axe is a relevant fact at trial. However, the fact that the axe was used by the accused in the murder will have to be corroborated by additional evidence such as forensic fingerprint analysis, blood group and DNA etc.

The next issue is would it make the difference whether the axe was found from a park open and accessible to others or not? The defense counsel may argue that anyone could have left the axe there. He may further argue that police had searched the park before the arrest of the accused and therefore, it should have been ordinarily recovered. The defense counsel would further allege that the police has now planted it to frame the innocent accused. However, the Supreme Court of India has held that the crucial question to be asked is whether the article so recovered was visible to others – and not whether the place of recovery was ordinarily accessible to others (see State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370). The fact of an earlier police search of the place is not of consequence if the object so recovered was concealed away from ordinary eyes. Therefore, only if the axe were in plain sight could the charge of manipulating or planting evidence be sustained.

Confession statements become valuable for the prosecution only when they lead to recovery of facts and articles which are further corroborated by other evidences during trial. Therefore, the defense counsel must know the art of hitting the confession under Section 27 Indian Evidence Act, 1872 at the right place with due intensity. Though the recovery of the article would lead to reading in evidence of that part of the confessional statement, the defense counsel may still be able to challenge the recovery on technical grounds. For example, if a FIR number is mentioned on the seizure memo of the article recovered before the registration of the FIR – it would cast a question on the legality of the recovery itself. Prior to registration of FIR, only a DD number is allotted to a report of crime. Hence, the absence of DD number on seizure memo, in case an FIR has not been registered yet, is a sign of probable manipulation of evidence. Or for example, a discrepancy between the time of recovery on the seizure memo, and the time of departure and arrival of the officer concerned in the police station diary would also cast doubt on the legality of the recovery. If the scene of recovery is an hour away from the concerned police station, and the departure entry and arrival entry in the station diary doesn’t have enough time difference to justify the retrieval of the article; it would challenge the recovery itself. Therefore, the crux is that while there isn’t sufficient substantive ground to challenge a confessional statement leading to recovery yet there are enough ways to challenge such confessions on technical and procedural grounds.

*The author is a practicing lawyer at the High Court of Delhi and can be contacted at

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