Confession

Confession:

 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:

a.Confessio in Judicio Omini Probation Major Est:



It means confession is judicial proceeding  is greater than any other proof.

b.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.

1.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.

2. 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