All You Want To Know About Recording Of Confessions (Section 164 CrPC) [Part-IV]

Read the first part HereRead the Second Part HereRead the third part HereEVIDENTIARY VALUE OF CONFESSION A Confession is ordinarily admissible in evidence. It is a relevant fact. It can be acted upon. Under certain circumstances, it can form the basis for a conviction. (vide Aloke Nath Dutta v. State of W.B. (2007) 12 SCC 230.) A confession, judicial or extra-judicial if found to have been voluntarily made can form the basis of conviction of the accused. (vide State of Rajasthan v. Rajaram AIR 2003 SC 3601.) Although the word "confession" is not taken in by the definition of "evidence" under Section 3 of the Evidence Act, it can fall under the expression "matters" referred to in the definition of the word "proved" in Section 3 of the Evidence Act. Thus, "confessions", "notings" made by the presiding Judge upon a local inspection, "material objects" etc are covered by the said expression "matters". A confession is admissible without examining the Magistrate who recorded the same. If the confession is not in conformity with law, even the examination of the Magistrate will not cure the illegality. (vide AIR 1969 Orissa 289 (follows Kashmira Singh v. State of M.P. AIR 1952 SC 159.) THE RELEVANCE OF RETRACTED CONFESSION Merely because the confession was retracted later, it does not mean that the confession was not voluntary in nature. The issue as to whether the accused was willing to give confession voluntarily or not is to be determined from his mental state at the time when he gave the confession. (vide paras 13 and 18 of Abdulvahab Abdulmajid Shaikh v. State of Gujrath (2007) 4 SCC 257.) If the confessional statement has been amply corroborated by circumstantial evidence, its subsequent retraction by the maker would not make it unreliable. (vide Henry Westmuller Roberts v. State of Assam (1985) 3 SCC 291 = AIR 1985 SC 823 – 3 Judges.) It is not the law that once a confession is retracted the Court should presume that the confession is tainted. To retract from a confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. (vide para 13 of State of T.N. v. Kutty (2001) 6 SCC 550 = AIR 2001 SC 2778.) Though a conviction based on the uncorroborated confession of an accused person is not illegal but as a rule of prudence which has become a rule of law, Courts look for corroboration before accepting a retracted confession. (vide Shankar v. State of T.N. (1994) 4 SCC 478.) A Court may take into account the retracted confession but it must look for the reasons for the making of the confession as well as for its retraction and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the Court is satisfied that it was retracted on account of an afterthought or advise , the retraction may not weigh with the Court. (vide paras 32 to 35 and 37 of State(NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600.) A conviction based on retracted confession without corroboration is not illegal (vide Ram Chandra Prasad Sharma v. State of Bihar AIR 1967 SC 349.) PROCEDURE FOR RECORDING A "STATEMENT" UNDER SECTION 164 Cr.P.C. 16. We will now examine the modalities of recording a statement under Section 164 Cr.P.C. during the course of investigation of a case. The enabling provision is sub-section (5) of Section 164 Cr.P.C. It has already been seen that in the case of an accused person, apart from recording a confession by such person, a non-confessional statement also can be recorded from him. (vide Rao Shiv Bahadur Singh and Another v. State of Vinthya Pradesh AIR 1954 SC 322 = 1954 KHC 472 – 3 Judges. VICTIM OR WITNESS TO BE SPONSORED BY THE POLICE A person who is neither an accused nor sponsored by the Police has no locus standi to apply to the Magistrate to record his statement under Section 164 Cr.P.C. In other words, a witness or a victim cannot barge into a Magistrate's Court and request the Magistrate to record his statement under Section 164 Cr.P.C., unless he is sponsored by the Police. This is because the Magistrate should not be burdened with the additional task of recording the statements of all and sundry who may knock at the door of the Court with a request to record their statements under Section 164 Cr.P.C. Otherwise, too many persons sponsored by culprits might throng before the portals of the Magistrates' Courts for the purpose of creating records in advance to help the culprits. (vide paras 19, 22, 23 and 24 of Jogendra Nahak v. State of Orissa (2000) 1 SCC 272 = AIR 1999 SC 2565 – 3 Judges.) ...

All You Want To Know About Recording Of Confessions (Section 164 CrPC) [Part-IV]

Justice V Ramkumar

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