Role of Self Incriminatory and Exculpatory Statements in Criminal Trial

Role of Self Incriminatory and Exculpatory Statements in Criminal Trial Preface There have been numerous discussions on the admissibility and relevancy of statements in criminal trial. How cans a single statement, convict or acquit the accused person? Is there any kind of distinction in statements made to police officer or to a magistrate? What statements to be made? Whom to make? Relevancy of statements made? What if statements are favourable to the person making it? What if the statement is against the person making it? How courts take notice of said statements? What if witness/accused retracts from the statements made? What is the Role of Judicial and Extra- Judicial statement? What are the key roles of confessional and Non-Confessional Statements? In this Article, I have aimed to give you an insight of all the aforementioned issues. I. Introduction Statements play a very crucial role in a criminal trial. There are numerous factors which have to be taken into consideration while relying on a particular statement, given by either accused person or the witness’s. The role of statements comes into picture from the very beginning, from the filing of FIR till the pronouncement of judgement. Our criminal jurisprudence talks about several rights while obtaining the statements from the witnesses and the accused- that a witness or accused should not be prejudiced of the statements made. Where, on one side our Indian constitution gives a constitutional right to individual; - to remain silent, so that his individual right should not be affected: it also provides the other legislative provisions, which compels him to give statements, so that the Societal Interest be protected but when dispute arises in respect of individual right and societal interest: the societal interest must prevail as for the protection of one individual right the whole society cannot suffer. The statements made during the course of investigation and trial has different aspects but there are two types of statements which need to give ample importance i.e., “Inculpatory and Exculpatory”. And when we talk about statements, it includes both Confession and Admission; where the Confession is a species of Admission and in criminal trial both plays a vital role in adjudication. Also, in this Article we will examine in depth the role and probative significance of said Inculpatory and Exculpatory Confessions/Statements. II. Definition’s The Indian Evidence Act of 1872 (hereinafter referred as IEA) has not yet defined "Confession" but its definition can be traced in a book written by Lord Stephen titled, ‘The Digest of the Law of Evidence’; “Confession is defined as an Admission made by the accused anytime in the trial which directly acknowledges his guilt or aids in drawing inference that accused is guilty of a crime”. The definition propounded by Lord Stephen had been widely accepted by the Indian Courts for a long period, until the privy council said only the direct acknowledgement of guilt will be perceived as a confession. Confessions can be of various forms like Plenary, Not Plenary, Judicial/Extrajudicial, and Voluntary/Involuntary and also retracted while Admission has no such forms. The Probative Value of Confession was found in the famous case of “Pakala Narayan Swami V. Emperor”- an important issue came up before the court about considering such statements as a confession from which the guilt of the accused could be inferred. Lord Atkin pointed out certain parameters for a Statement to be Confession; · The statement which contains admission of all the terms and facts of the offence can be called a confession. · Such a statement from which inference of the crime committed can be made is to be taken as a confession. An incriminating fact and its admission by accused cannot make such statements a confession. · If the Statement of accused comprises of self exculpatory matter it cannot be considered as confession. Similarly, In the case of Sahoo V. State of UP, 1965, The Hon’ble Supreme Court of India went a step ahead and said that for a statement to be a relevant Confession it is not essential for it to be communicated. Brief Facts of aforementioned case are; Sahoo, whose wife had died a long ago, was survived by his two sons, one of whom was married to Sunderpatti. The married Son lived away from home; Sahoo had illicit relations with his daughter in law. Sahoo and Sunderpatti quarrelled every day, one day after such altercation all three members slept in the only common room of their house. Next morning Sunderpatti was found gravely injured at her sleeping place and subsequently succumbed to death owing to the injuries. Same morning after the fateful night Sahoo was seen and hear Soliloquizing that he killed sunderpatti and there will be daily quarrel. The lower courts held such soliloquy statement to be extrajudicial but the Supreme Court was of the view that the concept of Confession implicitly requires it to be communicated to another person irrespective of fact that it was judicial or extra judicial. The definition made in the previously discussed case of Pakala Narayan V. Emperor was taken into consideration. Famous Authors like Taylor, Phipson and Best have treated confessions received alike in their books on evidence. Taylor in his book," A treatise on the Law of Evidence" said that if an accused is heard soliloquizing or confessing the crime to the spouse or any person in faith it can be said to be a relevant confession. WM Best said words said to one loud enough to be heard by others are same as giving written or oral statement addressed to a person. It is admissible like any other conventional method of confession. Phipson similarly is of the view that if an accused/ prisoner is heard muttering to himself other than in his sleep is a piece of valid evidence if it is subsequently proved. To Minimise the conflict, it is vital to Differentiate between the Admissions and Confessions; 1. An Admission is generally related to civil proceedings only. It is defined under section 17 of Indian Evidence Act, 1872 and in various ways it is covered from sections18- 30. While on the other hand, confession is related to criminal proceedings only and is provided under sections 24- 30 of the said Act. Hence, Admission is a genus and confession is specie. 2. All Confessions are admissions but the opposite of this statement is not true. As a statement may be immaterial as a Confession but it may be material as an admission; because a statement which cannot be admissible as a confession can be admissible as an admission for other purposes. 3. Confessions are conclusive proof and if a person accused of offence makes a confession of his guilt before the magistrate, the same is sought by the prosecution to establish the criminal offence, which will ultimately leads to the conviction of the accused person. Whereas Admissions are not conclusive proof but one making such statements is estopped by the rule of Estoppel under section 31 of IEA. Which means the person who is admitting a fact cannot revert/retract from the fact admitted because rule of evidence would estop him from doing so. But that doesn’t mean that admission will lead to the person’s conviction. 4. A Confession is statement which is made by the accused person and if the same is not voluntarily made and there is pressure/coercion/duress that shall not be accepted as conclusive. 5. Confession of an accused, charged and tried with others in a same offence can be used against them, only if the requirements of section 30 are fulfilled; but Admission of a fact cannot be used as evidence against others. 6. Confessions need to be voluntary to be admissible as evidence but there is no such condition for Admissions. Some Guidelines for confession and Admission in order to be admissible as evidence in court: v Confession caused by any inducement, threat or promise is not admissible as evidence, provided in section 24 of IEA. v A confessional statement given before police officer or in police custody is not admissible as evidence in court, in that regard IEA has two declaratory provisions i.e., section 25 and 26. v Section 27 of IEA which provides for the admissibility of discovery statements is an exception of section 24, 25 and 26, which says even if confession made by accused person is irrelevant as made before police officer/police custody than also it is admissible as evidence. Section 27 acts as a proviso to sections 24, 25 and 26 of IEA. The relevant cases with regard to the same are provided herein below; Ø Aghnoo Nagesia Vs state of Bihar, 1965, SC Ø State of UP Vs Deoman Upadhyaya, 1960,SC Ø Mohmed Inayatullah Vs Sate of M.P., 1975, SC However, the Non-Confessional statements does not fall under sections 24, 25, 26 and also inadmissible. v An exculpatory confession, which exculpates the accused person from a crime, is not admissible as evidence. Only inculpatory confessions are admissible. Same in the case of Admissions - Self Serving Admissions are not allowed to be proved in court rather only those admissions are allowed which are of Self Harming nature as it is oblivious that a person may make statement deliberately in its own favour. But this provision of IEA is not rigid, as, if admission is found to be self serving and if it fulfils the requirements of section 21(2) or other relevant provisions of IEA, than it will be allowed to be proved. III. Inculpatory and Exculpatory statements Now, other major factors, which is to be seen in aforesaid statements are- whether they are of Inculpatory or exculpatory nature and also their relevancy, to be admissible as evidence in court. Inculpatory Statements incriminate or acknowledges the guilt of the accused whereas those statements which absolve the accused from all the charges are Exculpatory Statements. In simple words - Self incriminatory statements are those in which a person accused of an offence makes statements against him and thus are unfavourable to him. On the other hand, exculpatory statements are related to the statements which are favourable to the accused person. OR To be very precise - “Any evidence that is favourable to the accused in a criminal trial is considered exculpatory. And, any evidence not favourable to the accused or in other words favourable to the prosecution is inculpatory”. For instance : A has been charged for the murder of B and during the trial A takes a plea that he did not kill B or he was not present at the crime scene (This part of statement is favourable to the accused, hence, exculpatory). OR If during the trial for the offence, A takes a plea that he was present at the crime scene but did not commit the murder or he had a quarrel with B (victim) before the alleged offence. (This part of statement which is not favourable here i.e., A’s presence at crime scene is deemed inculpatory) Let’s understand the concept by some more illustrations; Illustration 1 Suppose; X has been allegedly charged for the offence of murder of Y and during trial when the murder weapon presented before the court with attached DNA report, it was revealed that the fingerprint found on the weapon (knife) was not of accused and murder will link to another person, then, court will consider that said DNA report as Exculpatory, as it shows accused is not guilty with the offence charged. While on the other hand, if police report shows that murder weapon was discovered by the accused person himself then such statement is relevant under the relevant provisions of section 27 of IEA and also considered Inculpatory. Illustration 2 If A was arrested with Drugs in his car and has been allegedly charged for the offence of Drug peddling. And, during the trial, he states that he did not know that he was carrying drugs and also he was not aware about the fact who kept those drugs in his car. Now in this case, A somehow admitted the fact that the car he was driving was his own and also he knew that drug peddling is an offence. So, for these kind of admissions, A would not be held guilty directly for the offence rather prosecution needs to prove some other circumstantial evidences also. But If, on same factual position in said case, A confesses before the magistrate that he was carrying the drugs, then accused will directly be held guilty of the offence charged. IV. Role, Relevancy and Admissibility of Statements in Criminal Trial The chapter II of IEA talks about the relevancy of facts ; which clearly says that only those facts can be proved which are either relevant or in issue. Thus, the admissibility of facts and evidence is to be decided by the Court as IEA does not lay down any specific guidelines regarding appraisal of evidences or facts. In such a situation court has to follow the guidelines laid down by Hon’ble Supreme Court in many judgments. Practically, in most of the cases, when an accused person appears before the court, he comes up with pre-set mind of taking false pleas to exculpate him from the commission of crime. In rare of the rarest cases, accused confesses the crime before the court or plead guilty; that is the main reason of distinction between inculpatory and exculpatory confessional statements. And when it comes to the point of relevancy and admissibility of statements than in order to be admissible such statements should be legally as well as logically relevant also. The admission of such statements to be admissible as evidence depends upon various grounds; Firstly, court has to see whether the statement is relevant or not and if it is relevant than whether it is allowed to be proved in evidence, as, a statement may be relevant but it does not mean it is allowed to be proved as evidence in court. Section 136 embodied the principle related to admissibility of such statements but the list is not exhaustive; eventually it’s the prudence and wisdom of a judge which matters the most. Secondly, in considering the true and best evidence, court has to be very cautious as one wrong admission will lead to a wrong judgment and would also serve injustice. Suppose- there is a confessional and non confessional statement before the court and in the same one part is exculpatory and other is inculpatory then the court has to look upon other circumstantial evidences before straight away rejection of exculpatory part. And in those lights of evidences, if it is found that exculpatory part is false or concocted than court has a complete discretion to reject the exculpatory part and admit the inculpatory statement alone. “(Case referred: Nishikant Jha Vs state of Bihar, 1968, SC)” In one of the famous case- “Palvinder Kaur Vs state of Punjab, 1952, SC. It was observed by the Hon’ble Supreme Court that: “A statement that contains self exculpatory matter cannot amount to a confession, if the exculpatory matter is one of some fact, which if true would negative the offence alleged to be confessed’ and it was clearly held that the statement cannot be read in abstract rather it shall be read as a whole. Court cannot accept only the incrimination part and deny accepting the rest. The statements whether, exculpatory or inculpatory, must be accepted as whole. Thirdly, there comes a situation before the court where the person, who is giving the confessional statement, is dying and subsequent to that statement he doesn’t die and it is also found that the statement was exculpatory. In that situation court cannot out rightly reject the statement rather court needs to be very cautious and has to decide the case with the help of other incriminating or circumstantial evidences. There is a Maxim called- ‘Nemo Moriturus Praesumitur mentire’ i.e., No one at the point of death is presumed to lie. Which is widely accepted in English law, However, In India it doesn’t apply to its fullest. Hence, if said situation arises, court has to apply its fine sense of wisdom. Lastly, if it is found that, during the investigation and before the trial begins, there are both judicial and extra-judicial confessions, lies before the court or in some cases a witness/accused was interviewed and claimed that another person, not the alleged accused, committed the offence or a accused person retracted from the confession made; than in such circumstances also court will have to apply its prudence in evaluating the truth. In judicial confessions, court has to caution the accused person that you are not bound to make confession, it may use against you in trial, and if still accused confesses the guilt, than court will proceed further. But that is not the case of extra- judicial confessions as there are more chances of accused being threatened to give evidence. The relevancies of judicial confessions are conclusive in nature while extra- judicial confessions are feeble kind of evidences and somewhere lost their relevancy. Further, in cases where one accused gives the evidences against other accused, there are more chances of concocted evidence as one would try to escape from the guilt and in that process he would concoct a story against other accused person. The evidentiary values of those statements are very feeble and used only to provide missing link in the case. And, In case where a person retracts from the confession, he made earlier; the court will examine whether the confession was true or false and would not declare the confessional statement false in its entirety rather court may create a suspicion in the mind with regard to the testimony of such person and will go on to corroborate other relevant evidences and may also use such retracted confession against the said person. Conclusion Whether the statements, duly proved, to be admitted or not, is not very clear as in respect of Inculpatory and Exculpatory statements, court needs to emphasise on all the issues i.e., circumstantial evidences, chain of events and also to consider the conduct(previous/subsequent), demeanour of the witness/ accused before the court. So, a court cannot stick to a rigid mindset while dealing with such situation. Hence, for admission of any such statement, it’s better to have a positive approach and also detailed analysis of several judgements decided by Hon’ble Supreme Court of India. As, the main aim should always be the serving of justice to the person charged for the offence and also not let anyone escape by ‘misuse’ of the law of land. Author- Advocate Akshaya Kaushik (LinkedIn) Co-author - Avinash Kumar (Linkedin)





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