Evidence Law Notes for Evidence Law Notes

Posted on


A confession is a statement implicating him/her that the crime in question or alternatively he/she must have admitted all real relevant facts which are connected with the crime under consideration. In the case of HMG. VS. Jimidar Kurmi Supreme Court of Nepal has made an observation that If the accused has confessed his guilt before the police voluntarily without exhibiting any resistance it may be taken as evidence.

As per Sir James Stephen ‘a confession made at any time by a person charged with a crime stating or suggesting the inference that he/she committed the crime. Confession are special form of admissions. Thus it is popularly said that “All confession are Admission, but all Admission are not Confession.”

It is a rule of universal law that’ a person may convicted on the basis of his/her confession made in judicial proceeding. The underlying principle is enshrined in two Latin Maxims as stated below:

1. Confessio in Judicio Omini Probation Major Est:
It means confession is judicial proceeding is greater than any other proof.

2. Confessio Facta in Judicio Est Plena Probatio:
It means confession is absolute proof.

Indian Supreme Court has made remarkable decision in the case of “Palka Narayan Swami vs. Emperor “that a statement made by an accused which must either admits in terms of offence or any rate substantially all the facts which constitute the offence. It means that confession s the kind of admission which refers to the acceptance of all the facts that constitute the offence. The expression ‘confession ‘ means a statement made by an accused admitting his/her guilt .It is an admission or acknowledgement to commission of an offence.

Classification of Confession:

Confession can be divided in two categories:

  1. Judicial confession
  2. Extra judicial confession.

Judicial confession:
Confession made before the court is judicial confession .Guilty plea in plea bargaining is judicial confession. The court relies upon it unless there are reasonable doubts to it.

Extra Judicial confession:
Confession made by the accused before somebody outside the court. Such person may be the police, person in authority, friends, neighbors or others. As to police and person in authority the conditions on what ground confession is admissible has already been discussed above so far as the other persons are concerned confession can be taken as evidence if the court is of the opinion that it is voluntarily and free from the influence of torture. In Nepalese practice the prosecution has pay little attention on this point and are very rare instances in which such persons like friends or neighbors produced in the court to give evidence against the accused.

Generally, Nepalese court accepts, confession made before the police if it is of the opinion that it is made voluntarily .If the courts find proof of torture, against the accused it has always rejected the confession to be taken in evidence. But in India confession made before the police is inadmissible at all cost. Even confession made during police custody is inadmissible.

Legality of Confession:

Confession, whether it is judicial or extra-judicial, must be clear and unequivocal. No reliance can be placed on confessions, which are in general or vague terms. The judicial confession of an accused is good evidence and he/her can be convicted on the strength of it. Law does not require that a confession must be corroborated before it can be acted upon. It is the duty of the court to decide whether it believes a confession or not. The Evidence Act 2031, provides for confessions to be an important part of the evidence to convict the accused provided, however, that is obtained without use of torture or fear or undue influence. The Interim Constitution of Nepal 2007 guarantees protection to every individual against physical or mental torture during detention for investigation and such protection include the right against self-incrimination.

Confession is relevant only if it is made by the accused voluntarily without being influenced by inducement, threat or promise of any kind. According to sec. 9(2) of evidence Act 2031 confession is relevant if it is proved as follows:

  1. He must have made it in his consciousness.
  2. He must not have been influenced with inducement, threat or promise from person under authority.
  3. He must not have nor made it under the pressure of torture to himself or somebody else.
  4. He must have made it in his consciousness:
    That voluntariness is the essence of confession and person in authority denotes those persons who have legal right to persecute the offender .Therefore , it includes police, victim of the crime, public officials who are vested with the right of investigation of the crime .In the case of Bir Bahadur vs. Padan Lal Supreme court of Nepal has observed that “If any accused confesses his guilty before the police as well as in the court, the claim that he was tortured to extract confession in the police cannot be entertained.”

  5. He must not having influenced with inducement , threat or promise from person under authority: A confession to be admissible in evidence ; it must be free and voluntary. If it proceeds from remorse and a desire to make reparation for crime, it is admissible. A confession made by an accused in criminal proceeding is irrelevant ,if it is caused by any inducement, threat or promise.

  6. He must not have nor made it under the pressure or torture of himself or somebody:

Record of the statement of Suspect:

Interrogation of the arrested person starts after the arrest takes place. As the State Case Act [2049] requires the interrogation be carried out in presence of the government attorney.

The statement of the detainee amounting to confession forms a good evidence for conviction in Nepal, provided that it has not been extracted by use of force, coercion, inducement or torture or inhuman treatment. But in fact the entire Nepalese criminal justice system is based on confession. In Nepal more than 80% criminal cases adjudicated from the court under the basis of confession.

The confession and the admission are not the same thing .Evidence Act 2031 of Nepal neither talk about definition or differentiation of both. But Indian Evidence Act 1872 has mentioned both term confession and admission and also clarified these two terms. As a source of evidence , admission and confession are different things and they have different evidential values. To accept certain fact relating to the crime can not be counted as confession. In the case of Miss Marshakali Kaski on behalf of Jefrelong vs.Tribhuwan Airport and others made land mark observation stating that ‘accepting certain fact of the case ‘ is not confession. Similarly in the case of State vs. Porter, U.S.Supreme Court held that establishment of crime depends upon other facts and conditions. Hence , in admission , the conviction of crime may or may not be include. Learned people have symbolized that statement is ‘Genus’ admission is ‘Species ‘and confession is sub-species.

However , the context is different in the British law.Britain, there is no differentiation between admission and confession. They only recognized the difference in words. The Section 9 of British Evidence Act,1967 has mentioned confession as the evidence. In this context ,Walker said that ‘the distinction between admission and confession largely one of terminology .The Evidence Act 2031, of Nepal is not clear regarding confession and admission .Neither it has mentioned the terms confession and admission nor does it clearly make any demarcation between them. Thought , the Act seems too follow British view , the judicial interpretation follows Indian view. It is because the Evidence Act , 2031 has treated both confession and admission as the single term, i.e. statement made by party to the litigation .So the legal aspect often creates confusion which ultimately obstruct delivering of justice.

[1] HMG vs. Jimidar Kurmi NKP2027 P.61).

[2] AIR ,1939, P.47

[3] The Indian Evidence Act 1872, Sec.25 and 26

[4] NKP 2021, P.182

[5] Analysis and Reform of the Criminal Justice System in Nepal-CeLLRd, 2057

[6] NKP 2034, P.138

[7] State vs.Porter, 32/135,Wigmore ,f.821

[8]Prakash Washti, Evidence Law,4th edition,2053(Kathmandu, Paribas Prakashan), p.122

Top comments (0)