STATEMENTS ABOUT THE FACTS TO BE PROVED :
The general rule known as the hearsay rule is that what is stated about the fact in question is irrelevant. To this general rule there are three exceptions which are :
(i) Admissions and confessions;
(ii) Statements as to certain matters under certain circumstances by persons who are not witnesses; and
(iii) Statements made under special circumstances.
(i) Admissions and Confessions
Sections 17 to 31 lay down the first exception to the general rule known as admissions and confessions.
Admissions
An admission is defined in Section 17 as 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 mentioned under Sections 18 to 20. Thus, whether a statement amounts to an admission or not depends upon the question whether it was made by any of the persons and in any of the circumstances described in Sections 18-20 and whether it suggests an inference as to a fact in issue or a relevant fact in the case. Thus admission may be verbal or contained in documents as maps, bills, receipts, letters, books etc.
(However, the word ‘statement’ has not been defined in the Act. Therefore the ordinary dictionary meaning is to be followed which is “something that is stated.”)
An admission may be made by a party, by the agent or predecessor-in-interest of a party, by a person having joint propriety of pecuniary interest in the subject matter (Section 18) or by a “reference” (Section 20).
An admission is the best evidence against the party making the same unless it is untrue and made under the circumstances which does not make it binding on him.
An admission by the Government is merely relevant and non conclusive, unless the party to whom they are made has acted upon and thus altered his detriment.
An admission must be clear, precise, not vague or ambiguous. In Basant Singh v. Janky Singh, (1967) 1 SCR 1, The Supreme Court held:
“(1) Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admission. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true.
(2) All the statements made in the plaint are admissible as evidence. The Court is, however, not bound to accept all the statements as correct. The Court may accept some of the statements and reject the rest.” Admission means conceding something against the person making the admission. That is why it is stated as a general rule (the exceptions are in Section 21), that admissions must be self-harming; and because a person is unlikely to make a statement which is self-harming unless it is true evidence of such admissions as received in Court.
These Sections deal only with admissions oral and written. Admissions by conduct are not covered by these sections. The relevancy of such admissions by conduct depends upon Section 8 and its explanations.
Oral admissions as to the contents of electronic records are not relevant unless the genuineness of the record produced is in question. (Section 22A)
Confessions
Sections 24 to 30 deal with confessions. However, the Act does not define a confession but includes in it admissions of which it is a species. Thus confessions are special form of admissions. Whereas every confession must be an admission but every admission may not amount to a confession. Sections 27 to 30 deal with confessions which the Court will take into account. A confession is relevant as an admission unless it is made:
(i) to a person in authority in consequence of some inducement, threat or promise held out by him in reference to the charge against the accused;
(ii) to a Police Officer; or
(iii) to any one at a time when the accused is in the custody of a Police Officer and no Magistrate is present.
Thus, a statement made by an accused person if it is an admission, is admissible in evidence. The confession is an evidence only against its maker and against another person who is being jointly tried with him for an offence.
Section 30 is an exception to the general rule that confession is only an evidence against the confessor and not against the others.
The confession made in front of magistrate in a native state recorded is admissible against its maker is also admissible against co-accused under Section 30.
The Privy Council in Pakala Narayanaswami v. Emperor, (1929) PC 47, observed that: No statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. All confessions are admissions but not vice versa.
A confession must, either admit, in terms the offence, or substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, is not of itself a confession. For example, an admission that the accused was the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man’s possession of the knife or revolver. A confession cannot be construed as meaning a statement by the accused suggesting the inference that he committed the crime.
According to Section 24, confession caused by inducement, threat or promise is irrelevant. To attract the prohibition contained in Section 24 of the Evidence Act the following six facts must be established:
(i) that the statement in question is a confession;
(ii) that such confession has been made by an accused person;
(iii) that it has been made to a person in authority;
(iv) that the confession has been obtained by reason of any inducement, threat or promise proceeded from a person in authority;
(v) such inducement, threat or promise, must have reference to the charge against the accused person;
(vi) the inducement, threat or promise must in the opinion of the Court be sufficient 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.
To exclude the confession it is not always necessary to prove that it was the result of inducement, threat or promise. It is sufficient if a legitimate doubt is created in the mind of the Court or it appears to the Court that the confession was not voluntary. It is however for the accused to create this doubt and not for the prosecution to prove that it was voluntarily made. A confession if voluntary and truthfully made is an efficacious proof of guilt.
Confessions vs. Admissions
A confession, however, is received in evidence for the same reason as an admission, and like an admission it must be considered as a whole. Further there can be an admission either in a civil or a criminal proceedings, whereas there can be a confession only in criminal proceedings. An admission need not be voluntary to be relevant, though it may effect its weight; but a confession to be relevant, must be voluntary. There can be relevant admission made by an agent or even a stranger, but, a confession to be relevant must be made by the accused himself. A confession of a co-accused is not strictly relevant, though it may be taken into consideration, under Section 30 in special circumstances.
Confessions are classified as: (a) judicial, and (b) extra-judicial. Judicial confessions are those made before a Court or recorded by a Magistrate under Section 164 of the Criminal Procedure Code after following the prescribed procedure such as warning the accused that he need not to make the confession and that if he made it, it would be used against him. Extra-judicial confessions are those which are made either to the police or to any person other than Judges and Magistrates as such.
An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence. It will have to be proved just like any other fact. The value of the evidence depends upon the truthfulness of the witness to whom it is made.
In Ram Khilari v. State of Rajasthan, AIR 1999 SC 1002, the Supreme Court held that where an extra-judicial confession was made before a witness who was a close relative of the accused and the testimony of said witness was reliable and truthful, the conviction on the basis of extra judicial confession is proper.
In another case, the Supreme Court has further held that the law does not require that the evidence of an extrajudicial confession should be corroborated in all cases. When such confession was proved by an independent witness who was a responsible officer and one who bore no animus against the accused, there is hardly any justification to disbelieve it. Also, where the Court finds that the confession made by the accused to his friend was unambiguous and unmistakably conveyed that the accused was the perpetrator of the crime and the testimony of the friend was truthful, reliable and trustworthy, a conviction based on such extra-judicial confession is proper and no corroboration is necessary. Much importance could not be given to minor discrepancies and technical errors (Vinayak Shivajirao Pol v. State of Maharashtra, 1998 (1) Scale 159).
Illustrations
1. A undertakes to collect rents from C on behalf of 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 rent to B, is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.
2. 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.
3. The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B holds 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 the 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.
4. A is accused of a crime committed by him at Calcutta.
He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore 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 Section 32, clause (2).
5. 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.
6. A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said—“A and I murdered C”.
This statement may not be taken into consideration by the Court against A, as B is not being jointly tried. (If there is joint trial Section 30 applies)
Illustrations 5 and 6 are exceptions to the general rule that a confession is only evidence against the person who makes the confession. These are based on Section 30 of the Act.
(ii) Statements by persons who cannot be called as witnesses
Certain statements made by persons who are dead, or cannot be found or produced without unreasonable delay or expense, makes the second exception to the general rule. However, the following conditions must be fulfilled for the relevancy of the statements:
(a) That the statement must relate to a fact in issue or relevant fact,
(b) That the statement must fall under any of following categories:
(i) the statement is made by a person as to the cause of this death or as to any of the circumstances resulting in his death;
(ii) statement made in the course of business;
(iii) Statement which is against the interest of the maker;
(iv) a statement giving the opinion as to the public right or custom or matters of general interest;
(v) a statement made before the commencement of the controversy as to the relationship of persons, alive or dead, if the maker of the statement has special means of knowledge on the subject;
(vi) a statement made before the commencement of the controversy as to the relationship of persons deceased, made in any will or deed relating to family affairs to which any such deceased person belong;
(vii) a statement in any will, deed or other document relating to any transaction by which a right or custom was created, claimed, modified, etc.;
(viii) a statement made by a number of persons expressing their feelings or impression;
(ix) evidence given in a judicial proceeding or before a person authorised by law to take it, provided that the proceeding was between the same parties or their representatives in interest and the adverse party in the first proceeding had the right and opportunity to cross examine and the questions in issue were substantially the same as in the first proceeding.
Illustrations
(a) The question is, whether A was murdered by B; or
A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or
The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.
Statements made by A as to the course of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration are relevant facts.
(b) The question is as to the date of A’s birth.
An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day, he attended A’s mother and delivered her of a son, is a relevant fact.
(c) The question is, whether A and B were legally married.
The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.
(d) The question is, whether A, who is dead, was the father of B.
A statement by A that B was his own son, is a relevant fact.
(e) A sues B for libel expressed in a painted caricature exposed in a shop window. The question is as to the
similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.
(iii) Statements made under special circumstances
The following statements become relevant on account of their having been made under special circumstances:
(i) Entries made in books of account, including those maintained in an electronic form regularly kept in the course of business. Such entries, though relevant, cannot, alone, be sufficient to charge a person with liability; (Section 34)
(ii) Entries made in public or official records or an electronic record made by a public servant in the discharge of his official duties, or by any other person in performance of a duty specially enjoined by the law; (Section 35)
(iii) Statements made in published maps or charts generally offered for the public sale, or in maps or plans made under the authority of the Central Government or any State government; (Section 36)
(iv) Statement as to fact of public nature contained in certain Acts or notification; (Section 37)
(v) Statement as to any foreign law contained in books purporting to be printed or published by the Government of the foreign country, or in reports of decisions of that country. (Section 38)
When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made. (Section 39)