CONTENTS
Table showing sections of Indian Evidence Act, 1872 and corresponding sections of Bharatiya Sakshya Adhiniyam, 2023 I-7
Table showing sections of Bharatiya Sakshya Adhiniyam, 2023 and corresponding sections of Indian Evidence Act, 1872 I-19
Table showing new sections of Bharatiya Sakshya Adhiniyam, 2023 I-31
Table showing sections of Indian Evidence Act repealed by Bharatiya Sakshya Adhiniyam, 2023 I-33
Section key to Bharatiya Sakshya Adhiniyam, 2023 I-35
Comparative Study of Bharatiya Sakshya Adhiniyam, 2023 and Indian Evidence Act, 1872 I-49
Arrangement of sections 1
Text of Bharatiya Sakshya Adhiniyam, 2023 11
Statement of Objects and Reasons 105 Notes on Clauses 107
248th Report on Bharatiya Sakshya Bill, 2023 - Parliamentary Standing Committee on Home Affairs - Observations/ Recommendations - At a glance 135
Speech of Honourable Minister of Home Affairs and Minister of Cooperation (Shri Amit Shah) in Lok Sabha on 20-12-2023 139
Appendix : Provisions of other Acts Referred to in Bharatiya Sakshya Adhiniyam, 2023 141
S. 12
BHARATIYA SAKSHYA ADHINIYAM, 2023 26
Facts relevant when right or custom is in question.
11. Where the question is as to the existence of any right or custom, the following facts are relevant—
(
a) any transaction by which the right or custom in question was created. claimed, modi ed, recognised, asserted or denied, or which was inconsistent with its existence;
(
b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.
Illustration
The question is, whether A has a right to a shery. A deed conferring the shery on A’s ancestors, a mortgage of the shery by A’s father, a subsequent grant of the shery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbours, are relevant facts.
Corresponding Provision : Section 13 of Indian Evidence Act, 1872 Facts showing existence of state of mind, or of body or bodily feeling.
12. Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.
Explanation 1.—A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.
Explanation 2.—But where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of such person shall also be a relevant fact.
Illustrations
(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen.
(b) A is accused of fraudulently delivering to another person a counterfeit currency which, at the time when he delivered it, he knew to be counterfeit. The fact that, at the time of its delivery, A was possessed of a number of other pieces of counterfeit currency is relevant. The fact that A had been previously convicted of delivering to another person as genuine a counterfeit currency knowing it to be counterfeit is relevant.
(c) A sues B for damage done by a dog of B’s, which B knew to be ferocious. The fact that the dog had previously bitten X, Y and Z, and that they had made complaints to B, are relevant.
(
d) The question is, whether A, the acceptor of a bill of exchange, knew that the name of the payee was ctitious. The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant, as showing that A knew that the payee was a ctitious person.
(
e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B. The fact of previous publications by A respecting B, showing ill-will on the part of A towards B is relevant, as proving A’s intention to harm B’s reputation by the particular publication in question. The facts that there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.
(
f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his neighbours and by persons dealing with him, is relevant, as showing that A made the representation in good faith.
(
g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor. A’s defence is that B’s contract was with C. The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C’s own account, and not as agent for A.
(
h) A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropriated it, he believed in good faith that the real owner could not be found. The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found. The fact that A knew, or had reason to believe, that the notice was given fraudulently by C, who had heard of the loss of the property and wished to set up a false claim to it, is relevant, as showing that the fact that A knew of the notice did not disprove A’s good faith.
(i) A is charged with shooting at B with intent to kill him. In order to show A’s intent, the fact of A’s having previously shot at B may be proved.
(j) A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters.
(k) The question is, whether A has been guilty of cruelty towards B, his wife. Expressions of their feeling towards each other shortly before or after the alleged cruelty are relevant facts.
(
l) The question is, whether A’s death was caused by poison. Statements made by A during his illness as to his symptoms are relevant facts.
(m) The question is, what was the state of A’s health at the time when an assurance on his life was effected. Statements made by A as to the state of his health at or near the time in question are relevant facts.
(n) A sues B for negligence in providing him with a car for hire not reasonably t for use, whereby A was injured. The fact that B’s attention was drawn on other occasions to the defect of that particular car is relevant. The fact that B was habitually negligent about the cars which he let to hire is irrelevant.
(o) A is tried for the murder of B by intentionally shooting him dead. The fact that A on other occasions shot at B is relevant as showing his intention to shoot B. The fact that A was in the habit of shooting at people with intent to murder them is irrelevant.
BHARATIYA SAKSHYA ADHINIYAM, 2023
(p) A is tried for a crime. The fact that he said something indicating an intention to commit that particular crime is relevant. The fact that he said something indicating a general disposition to commit crimes of that class is irrelevant.
Corresponding Provision : Section 14 of Indian Evidence Act, 1872
COMMENTS
Motive cannot be a substitute for proof of guilt - Even if it is believed that the accused appellant had a motive to commit the crime, the same may be an important circumstance in a case based on circumstantial evidence but cannot take the place as a conclusive proof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the accused appellant but suspicion, howsoever strong, cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt. The trial court rightly disbelieved motive to commit the crime as the evidence in this regard is absolutely hearsay in nature. [Para 92]Subramanya v. State of Karnataka AIR 2022 Supreme Court 5110. Motive is an important link in chain of circumstances - In a case of circumstantial evidence, motive has an important role to play. Motive may also have a role to play even in a case of direct evidence but it carries much greater importance in a case of circumstantial evidence than a case of direct evidence. It is an important link in the chain of circumstances. [Para 15] - Indrajit das v. State of Tripura AIR 2023 Supreme Court 1239.
Absence of motive cannot be a ground to reject prosecution case, but weighs in favour of accused - As regards the relevancy of motive in a case based on circumstantial evidence, the weight of authorities is on principles that if motive is proved, that would supply another link in the chain of circumstantial evidence but, absence of motive cannot be a ground to reject the prosecution case, though such an absence of motive is a factor that weighs in favour of the accused. [Para 15] - Prem Singh v. State of NCT of Delhi AIR 2023 Supreme Court 193.
Motive, when proved, supplies additional link in chain of circumstantial evidenceMotive, when proved, supplies additional link in the chain of circumstantial evidence but, absence thereof cannot, by itself, be a ground to reject the prosecution case; although absence of motive in a case based on circumstantial evidence is a factor that weighs in favour of the accused. [Para 17.1] - Prem Singh v. State of NCT of Delhi AIR 2023 Supreme Court 193.
Failure to prove motive in case of circumstantial evidence not fatal - It is a settled principle of criminal jurisprudence that in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. This Court in various decisions has laid down the principles holding that motive for commission of offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of offence is available. It is equally true that failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. However, it is also well settled and it is trite in law that absence of motive could be a missing link of incriminating circumstances, but once the prosecution has established the other incriminating circumstances to its entirety, absence of motive will not give any bene t to the accused. [Para 87] - Ramanand Alias Nandlal Bharti v. State of Uttar Pradesh AIR 2022 Supreme Court 5273.
Facts bearing on question whether act was accidental or intentional.
13. When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.
(
CH. II : RELEVANCY OF FACTS
Illustrations
a) A is accused of burning down his house in order to obtain money for which it is insured. The facts that A lived in several houses successively each of which he insured, in each of which a re occurred, and after each of which res A received payment from a different insurance company, are relevant, as tending to show that the res were not accidental.
(
b) A is employed to receive money from the debtors of B. It is A’s duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive. The question is, whether this false entry was accidental or intentional. The facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.
(
c) A is accused of fraudulently delivering to B a counterfeit currency. The question is, whether the delivery of the currency was accidental. The facts that, soon before or soon after the delivery to B, A delivered counterfeit currency to C, D and E are relevant, as showing that the delivery to B was not accidental.
Corresponding Provision : Section 15 of Indian Evidence Act, 1872
Existence of course of business when relevant.
14. When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.
Illustrations
(a) The question is, whether a particular letter was dispatched. The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place are relevant.
(
b) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Return Letter Of ce, are relevant.
Corresponding Provision : Section 16 of Indian Evidence Act, 1872 Admissions
Admission de ned.
15. An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.
Corresponding Provision : Section 17 of Indian Evidence Act, 1872
Admission by party to proceeding or his agent.
16. (1) Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions.
(2) Statements made by—
(i) parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character; or
BHARATIYA SAKSHYA ADHINIYAM, 2023
(ii) (a) persons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who make the statement in their character of persons so interested; or (b) persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.
Corresponding Provision : Section 18 of Indian Evidence Act, 1872 Admissions by persons whose position must be proved as against party to suit.
17. Statements made by persons whose position or liability, it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability.
Illustration
A undertakes to collect rents for B. B sues A for not collecting rent due from C to B. A denies that rent was due from C to B. A statement by C that he owed B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.
Corresponding Provision : Section 19 of Indian Evidence Act, 1872 Admissions by persons expressly referred to by party to suit.
18. Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.
Illustration
The question is, whether a horse sold by A to B is sound.
A says to B—“Go and ask C, C knows all about it”. C’s statement is an admission. Corresponding Provision : Section 20 of Indian Evidence Act, 1872 Proof of admissions against persons making them, and by or on their behalf.
19. Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases, namely:—
(1) an admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 26;
(2) an admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable;
(3) an admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.
Illustrations
(
a) The question between A and B is, whether a certain deed is or is not forged. A af rms that it is genuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged.
(
b) A, the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under clause (b) of section 26.
(
c) A is accused of a crime committed by him at Kolkata. He produces a letter written by himself and dated at Chennai on that day, and bearing the Chennai post-mark of that day. The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under clause (b) of section 26.
(
d) A is accused of receiving stolen goods knowing them to be stolen. He offers to prove that he refused to sell them below their value. A may prove these statements, though they are admissions, because they are explanatory of conduct in uenced by facts in issue.
(
e) A is accused of fraudulently having in his possession counterfeit currency which he knew to be counterfeit. He offers to prove that he asked a skilful person to examine the currency as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine. A may prove these facts.
Corresponding Provision : Section 21 of Indian Evidence Act, 1872
When oral admissions as to contents of documents are relevant.
20. Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.
Corresponding Provision : Section 22 of Indian Evidence Act, 1872
Admissions in civil cases when relevant.
21. In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.
Explanation.—Nothing in this section shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under sub-sections (1) and (2) of section 132.
Corresponding Provision : Section 23 of Indian Evidence Act, 1872
BHARATIYA SAKSHYA ADHINIYAM, 2023
Confession caused by inducement, threat, coercion or promise, when irrelevant in criminal proceeding.
22. A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat, coercion or promise having reference to the charge against the accused person, proceeding from a person in authority and suf cient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him:
Provided that if the confession is made after the impression caused by any such inducement, threat, coercion or promise has, in the opinion of the Court, been fully removed, it is relevant:
Provided further that if such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him.
Corresponding Provision : Section 24, 28 and 29 of Indian Evidence Act, 1872
COMMENTS
Extra judicial confession must be voluntary not caused by any inducement, threat or promise - Confessions may be divided into two classes, i.e. judicial and extra judicial. Judicial confessions are those which are made before Magistrate or Court in the course of judicial proceedings. Extra judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those made by a party to or before a private individual which includes even a judicial of cer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under section 164 of the Cr.P.C. or a Magistrate so empowered but receiving the confession at a stage when section 164 does not apply. As to extra judicial confessions, two questions arise: (i) were they made voluntarily? And (ii) are they true? As the Section enacts, a confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) suf cient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a t state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person, or (b) it does not proceed from a person in authority; or (c) it is not suf cient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making
it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of section 24 of the Evidence Act. The law is clear that a confession cannot be used against an accused person unless the Court is satis ed that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the Court has to be satis ed with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors at the time given for re ection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the Court is satis ed that its opinion, the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of highest credit, because it is presumed to ow from the highest sense of guilt. [See R.V. Warwickshall (1783) Lesch 263)].
It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So, where the statement is made as a result of the harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe Evidence, 9th Edn. Page 284).
A promise is always attached to the confession, alternative while a threat is always attached to the silence alternative; thus, in the one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the Court is to determine the absence or presence of inducement, promise etc. or its suf ciency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is suf cient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words 'appear to him’ in the last part of the section refer to the mentality of the accused. [See State of Rajasthan v. Raja Ram (2003) 8 SCC 180) : (AIR 2003 SC 3601)].
An extra judicial confession, if voluntary and true and made in a t state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and
conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires con dence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire con dence. If the court is satis ed that the extra judicial confession is voluntary, it can be acted upon to base the conviction. [Paras 80, 81 and 82] - Ramanand Alias Nandlal Bharti v. State of Uttar Pradesh AIR 2022 Supreme Court 5273.
Extra judicial confession, if voluntary and true and made in a t state of mind, can be relied but it being a weak piece of evidence, it is to be corroborated by other prosecution evidence - An extra judicial confession, if voluntary and true and made in a t state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires con dence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire con dence. If the court is satis ed that the extra judicial confession is voluntary, it can be acted upon to base the conviction. [Para 53] - Subramanya v. State of Karnataka AIR 2022 Supreme Court 5110. If voluntary statement is recorded in language not known to accused, assistance of interpreter is to be taken - Illustration - The statement of the accused having been recorded being voluntary and when the statement is being recorded in the language not known to the accused, the assistance of interpreter if taken by the police cannot be found fault with.
The ultimate test of the said statement made by the accused having been noted down as told by the accused or not would be of paramount consideration. If the answer is in the af rmative then necessarily said statement will have to be held as passing the test of law as otherwise not. Merely because the translation was made from Malayalam to Tamil and written down in Kannada would not suggest that such statement be held to be either not being voluntary or the said statement having been recorded improperly. The interpreter having entered the witness box and tendered himself for cross-examination which resulted in nothing worthwhile
having been elicited for discarding his evidence, it cannot be gainsaid by the accused that said statement is to be ignored or rejected or discarded. Merely because the accused did not know how to read and write Malayalam does not ipso facto make the contents of statement to be disbelieved. [Para 19] - Siju Kurian v. State of Karnataka AIR 2023 Supreme Court 2239.
Confession to police of cer.
23 (1) No confession made to a police of cer shall be proved as against a person accused of any offence.
Corresponding Provision : Section 25 of Indian Evidence Act, 1872
(2) No confession made by any person while he is in the custody of a police of cer, unless it is made in the immediate presence of a Magistrate shall be proved against him:
Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police of cer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved.
Corresponding Provision : Section 26 and 27 of Indian Evidence Act, 1872
COMMENTS
Statement is inadmissible if given while in police custody - Section 25 of the Evidence Act in no uncertain terms makes it clear that no confession made to a police of cer shall be proved as against a person accused of any offence. Likewise, Section 26 states that any such statement is inadmissible if given while in police custody. When the confessional statement of the accused relied upon by the prosecution was admittedly recorded after the arrest of those accused persons when other accused were in police custody, said statement would become inadmissible having regard to the provisions of sections 25 and 26 of the Evidence Act, 1872. Section 25 of the Act in no uncertain terms makes it clear that no confession made to a police of cer shall be proved as against a person accused of any offence. Likewise, section 26 states that any such statement is inadmissible if given while in police custody. [Para 9] - Naresh Alias Nehru v. State of Haryana AIR 2023 Supreme Court 5054.
Appreciation of evidence by Supreme Court - Though in cases of concurrent ndings of fact the Apex Court will not ordinarily interfere with the said ndings, in exceptional circumstances, the Apex Court is empowered to do so. If this Court nds that the appreciation of evidence and ndings is vitiated by any error of law or procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse, the Apex Court would not be powerless to reappreciate the evidence. [Para 26] - Khema Alias Khem Chandra v. State of Uttar Pradesh AIR 2022 Supreme Court 3765.
Testimonies of family members cannot be rejected - Merely because the witnesses are family members apart from being chance witnesses, their testimonies cannot be rejected. [Para 34] - Jafarudheen v. State of Kerala AIR 2022 Supreme Court 3627.
Section 27 of Evidence Act incorporates theory of “con rmation by subsequent facts” facilitating a link to chain of events - Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offence. Thus, it incorporates
the theory of “con rmation by subsequent facts” facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to sections 24 to 26 meant for a speci c purpose and thus be construed as a proviso. The onus is on the prosecution to prove the fact discovered from the information obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under section 27 will have to satisfy the Court's conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness’s credibility and the other evidence produced when dealing with a recovery under section 27 of the Evidence Act. [Paras 30 and 31] - Jafarudheen v. State of Kerala AIR 2022 Supreme Court 3627.
Only if contents of discovery panchnama is proved, such evidence can be relied upon - The requirement of law that needs to be ful lled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating of cer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating of cer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justi ed in relying upon such evidence and the trial court may also accept the evidence. [Para 56] - Ramanand Alias Nandlal Bharti v. State of Uttar Pradesh AIR 2022 Supreme Court 5273.
Voluntary custodial statement is admissibility as legal evidence when facts stated is not in knowledge of others - Section 27 of Evidence Act permits the derivative use of custodial statement in the ordinary course of events. There is no automatic presumption that the custodial statements have been extracted through compulsion. A fact discovered is an information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered at the instance of the accused which was not within the knowledge of the police before recording the disclosure statement of the accused. The statement of an accused recorded while being in police custody can be split into its components and can be separated from the admissible portions. Such of those components or portions which were the immediate cause of the discovery would be the legal evidence and the rest can be rejected. It is a trite law that in pursuance to a voluntary statement made by the accused, a fact must be discovered which was in the exclusive knowledge of the accused alone. In such circumstances, that part of the voluntary statement which leads to the discovery of a new fact which was only in the knowledge of the accused would become admissible under section 27. Such statement should have been voluntarily made and the facts stated therein should not have been in the knowledge of others. [Paras 18 and 19] - Siju Kurian v. State of Karnataka AIR 2023 Supreme Court 2239.
Being in ‘custody of a police of cer’ and being ‘accused of an offence’, are pre-requisites to render a confession made to police admissible to a limited extent - Section 26 of the Indian Evidence Act, 1872 provides that no confession made by any person whilst he is in the custody of a police of cer shall be proved against such person, unless it is made in the immediate presence of a Magistrate. Section 27 of Evidence Act, thereafter, is in the nature of an exception to section 26 of the Evidence Act. It states that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police of cer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Therefore, it is essential under section 27 of the Evidence Act that the person concerned must be ‘accused of an offence’ and being in the ‘custody of a police of cer’, he or she must give information leading to the discovery of a fact and so much of that information, whether it amounts to a confession or not, that relates distinctly to the fact discovered, may be proved against him. In effect, both aspects, viz., being in ‘the custody of a police of cer’ and being ‘accused of an
offence’, are indispensable pre-requisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated under section 27 of the Evidence Act. [Para 22] - Rajesh v. State of Madhya Pradesh AIR 2023 Supreme Court 4759. After recording statement (Panchnama) in presence of two independent witnesses, would proceed to particular place as may be led by accused - If, it is say of the investigating of cer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the rst thing that the investigating of cer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the rst part of the panchnama that the investigating of cer may draw in accordance with law. This rst part of the panchnama for the purpose of section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the rst part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating of cer to draw the discovery panchnama as contemplated under section 27 of the Evidence Act. [Para 53] - Ramanand Alias Nandlal Bharti v. State of Uttar Pradesh AIR 2022 Supreme Court 5273.
Disclosure statement of co-accused cannot be solely relied - The law on the evidentiary value of disclosure statements of co-accused too is settled; the courts have hesitated to place reliance solely on disclosure statements of co-accused and used them merely to support the conviction or, as Sir Lawrence Jenkins observed in Emperor v. Lalit Mohan Chucker burty to “lend assurance to other evidence against a co-accused”. [Para 23] - Manoj Kumar Soni v. State of Madhya Pradesh AIR 2023 Supreme Court 3857.
Consideration of proved confession affecting person making it and others jointly under trial for same offence.
24. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation I.—“Offence”, as used in this section, includes the abetment of, or attempt to commit, the offence.
Explanation II.—A trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall be deemed to be a joint trial for the purpose of this section.
Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said—“B and I murdered C”. The Court may consider the effect of this confession as against B.