Evidence Law: Indian Evidence Act, 1872 / Bharatiya Sakshya Adhiniyam, 2023 (BSA)

Confession vs Statement Leading to Discovery

Confession vs Statement Leading to Discovery under the Bharatiya Sakshya Adhiniyam, 2023: Difference, Severance and Use Against a Co-Accused

The same words spoken by the same person in the same breath may be a confession, inadmissible in its entirety, and a statement leading to discovery, admissible in part. Nothing in the law of confessions causes more difficulty than this, because the two operate on the same material by opposite rules: a confession may not be split to save its favourable portions, while a discovery statement must be split to isolate what the recovery confirms.

1. The Two Provisions

Section 23, BSA — Confession to police officer

(1) No confession made to a police officer shall be proved as against a person accused of any offence.

(2) No confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved against him.

Proviso. — 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 officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

The phrase 'whether it amounts to a confession or not' is the key to the whole relationship. The proviso is indifferent to the character of the words. What it looks to is whether they led to a discovery, and how much of them relates distinctly to it. A statement need not be a confession to fall within the proviso, and being a confession does not take it outside.

2. The Comparison

Confession

Statement leading to discovery

Provision

Sections 22, 23(1) and 23(2)

Proviso to Section 23(2)

What it is

A statement admitting the offence, or substantially all the facts constituting it

Information, of any character, which results in the finding of a fact

Must it be a confession?

By definition, yes

No — 'whether it amounts to a confession or not'

Requires a discovery?

No

Yes. Something previously unknown to the police must be found

Requires custody?

Section 23(2) operates where the maker is in custody; Section 23(1) does not depend on custody

Yes. The accused must have been in the custody of a police officer

How much is admitted

The whole statement where admissible; nothing where excluded

Only so much as relates distinctly to the fact discovered

Severance

A confession may not be split to admit its less incriminating parts — Aghnoo Nagesia

The admissible portion must be severed from the rest — Prabhu

What it establishes

The offence, or the facts constituting it

Knowledge of the place or the object, and nothing more

Use against a co-accused

Section 24 — may be taken into consideration in a joint trial, though it is not evidence

Not available against a co-accused at all. The proviso operates only against the person from whom the information was received

Effect of failure

Excluded entirely

The words are excluded, but the conduct of pointing out may still be proved under Section 6(2)

⚠ The discovery portion is not usable against a co-accused

This is frequently overlooked. Section 24 deals with confessions in a joint trial, and permits the court to take a co-accused's confession into consideration. The proviso to Section 23(2) is not a confession provision at all: it admits information received from a person accused, and it admits it as against that person. Information given by A leading to a recovery does not become receivable against B by force of the proviso, and it does not become receivable against B under Section 24 either, because what is admitted under the proviso is not admitted as a confession.

3. The Two Rules About Splitting

The most confusing feature of this area is that two settled rules point in opposite directions. Both are correct, and they operate on different questions.

The rule against splitting a confession

The rule requiring severance under the proviso

Authority

Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119

Prabhu v. State of U.P., AIR 1963 SC 1113; Pulukuri Kottaya v. Emperor, AIR 1947 PC 67

Proposition

A confessional statement cannot be split up so as to admit the portions that are not directly self-incriminating. The ban applies to the confession as a whole, including the parts describing motive, preparation, opportunity and conduct

The court must sever the portion of the information that relates distinctly to the fact discovered, and admit that portion alone

Purpose

To prevent the prosecution from extracting favourable fragments of an inadmissible confession

To confine the exception to what the discovery actually confirms

Direction

Severance is forbidden in order to save material for the prosecution

Severance is compulsory in order to limit what the prosecution may use

How they fit together

The confession as a whole is inadmissible under Sections 23(1) and 23(2). The only portion that may be proved is that falling within the proviso

The proviso is the sole opening in the wall, and severance is how its width is measured

📖 Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119

Held: Where a first information report is lodged by the accused himself and amounts to a confession, the whole of it is inadmissible. A confessional statement cannot be split up so as to admit the portions that are not directly self-incriminating; the ban applies to the confession as a whole, including the parts describing motive, preparation, opportunity and conduct. The only portion that may be proved is that which falls within the discovery provision.

Ratio: A confessional FIR by the accused is inadmissible in its entirety, save for the portion protected by the proviso.

📖 Prabhu v. State of Uttar Pradesh, AIR 1963 SC 1113

Held: Where the information given by the accused led to the discovery of bloodstained clothes and a weapon, the portion of the statement leading to the discovery was admissible, but the accompanying assertion by the accused that the weapon was the one used in the commission of the offence was not. Self-incriminatory statements and narrative details given by the accused which do not lead to the discovery of any new fact must be excluded from evidence.

Ratio: The admissible portion is severable, and the court must sever it rather than admit or exclude the statement as a whole.

4. Where the Line Falls

📖 Pulukuri Kottaya v. Emperor, AIR 1947 PC 67

Held: The extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to that fact. Information as to past user, or the past history, of the object produced is not related to its discovery.

The classic illustration: where the accused says 'I will produce a knife concealed in the roof of my house with which I stabbed A', the words 'with which I stabbed A' relate to the past use of the knife and are inadmissible. Only so much as leads to the discovery is receivable.

Ratio: The foundational construction, applied without variation to the proviso to Section 23(2).

Words spoken

Character

Admissible?

Reason

'I killed him'

Confession

No

Hit by Section 23(1) or 23(2); leads to no discovery

'I will show the place where the knife is hidden'

Neither a confession nor an admission of the offence

Yes

Relates distinctly to the discovery and to the knowledge of the place

'The body is buried behind the shed'

Not a confession in terms

Yes

Identifies the place from which the fact is discovered

'with which I stabbed A'

Confessional

No

Past use of the object; not part of the fact discovered

'which I took from the deceased'

Confessional

No

Past history of the object

'I killed him and buried him behind the shed'

Mixed

Severed — the first clause no, the second yes

Only the portion leading to the discovery survives

'I hid it there so the police would not find it'

Explanatory of conduct

No as to the reason

The motive for concealment is not part of the fact discovered

5. The Three Routes for What an Accused Says or Does

Faced with a disclosure statement and a recovery, the prosecution has three possible routes, and they are not alternatives to be chosen at will — each has its own requirements.

Route

Provision

What must be shown

What is admitted

As a confession

Sections 22 and 23

That it was not induced, and was not made to a police officer or in police custody

The whole statement, or nothing

As information leading to a discovery

Proviso to Section 23(2)

A discovery of a previously unknown fact; deposed to; information from the accused; custody; causal connection

Only so much as relates distinctly to the fact discovered

As conduct

Section 6(2)

That the accused led the police to the place and pointed out the article

The act alone. No words are proved

📖 A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714

Held: Where the accused, pursuant to information given by them, led the police and the witnesses to the place where the dead body was concealed and pointed it out, the conduct of the accused in doing so falls within Section 8 of the Indian Evidence Act, now Section 6 of the Adhiniyam, and is admissible irrespective of whether the statement accompanying it satisfies the requirements of the discovery provision. Even if the information given does not amount to a statement leading to discovery, the conduct of pointing out is relevant as conduct.

Ratio: The conduct route survives the failure of the proviso, and does not depend on custody or on a discovery.

📖 Prakash Chand v. State (Delhi Administration), (1979) 3 SCC 90

Held: There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 if it is influenced by any fact in issue or relevant fact, and a statement made to a police officer in the course of an investigation. The evidence of the conduct of the accused in taking the officer to a place and pointing out an article is admissible as conduct; the bar on the use of statements made to the police does not extend to conduct.

Ratio: Conduct and statement are distinct subjects, and the statutory bar on police statements does not reach conduct.

⚠ What the conduct route does not do

The conduct of pointing out establishes that the accused knew where the article was. It does not establish that he placed it there, still less that he committed the offence. And it does not let in the words: nothing the accused said while pointing out becomes admissible by this route. Where a court records the entire disclosure statement and then says it is relying on it 'as conduct', it has admitted through the back door what Section 23 shuts out at the front.

6. Why the Proviso Exists

The distinction between the two rests on a difference in reliability, not in gravity. A confession made in custody may have been extracted, and there is nothing outside it to test it against. Information that leads to a discovery is tested by the discovery itself, which is an objective event the investigating agency cannot manufacture.

Confession in custody

Information leading to a discovery

The problem

It may have been extracted, and nothing outside the statement confirms it

The same problem attaches to the statement

The answer

There is none. The statement is excluded

The discovery confirms so much of the information as led to it

How far the confirmation extends

Not applicable

Only to the fact discovered — the object, the place, and the knowledge of the accused as to the place

What follows

Total exclusion under Sections 23(1) and 23(2)

Partial admission under the proviso, measured by the confirmation

📖 State of Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125

Held: The provision was challenged as violating Article 14, on the ground that it discriminates between an accused in the custody of a police officer and one who is not. A majority upheld it, holding that persons in custody and persons not in custody do not stand on the same footing, and that the classification bears a rational relation to the object of the provision. The Court explained that the section proceeds on the footing that where the information is confirmed by the discovery of a fact, the taint attaching to a custodial statement is removed to that extent.

Ratio: The constitutional validity of the discovery provision, and a statement of the reasoning on which the distinction rests.

This reasoning explains the width of the exception. The confirmation extends only as far as the confirming event, and that is why the proviso admits only so much of the information as relates distinctly to the fact discovered. Everything beyond that point is an unconfirmed custodial statement, and is excluded for exactly the same reason as a confession.

7. Working Through a Disclosure Statement

Step

Question

If the answer is no

1

Was a fact discovered — something previously unknown to the police?

Nothing under the proviso. Consider Section 6(2) if the accused did anything

2

Is the discovery deposed to by a witness?

The proviso cannot operate

3

Was the information received from the accused, and is it proved what he said?

The proviso cannot operate

4

Was he in the custody of a police officer at the time?

The proviso does not apply; if the statement is a confession to a non-police person, Sections 22 and 23(1) are considered instead

5

Was the discovery in consequence of the information?

The recovery stands on its own footing but the words are excluded

6

Which words relate distinctly to the fact discovered?

Sever. Everything else, confessional or not, is excluded

7

Against whom is the surviving portion being used?

Only against the maker. It is not receivable against a co-accused under the proviso or under Section 24

8

Is there conduct independent of the words?

The conduct may be proved under Section 6(2) even if every earlier step failed

8. The Distinction in Summary

  1. A confession is defined by its content; a discovery statement is defined by its effect. The proviso applies whether or not the words amount to a confession.
  2. A confession is admitted whole or not at all; a discovery statement is admitted only in the severed portion that relates distinctly to the fact discovered.
  3. A confession may not be split to help the prosecution; a discovery statement must be split to limit it.
  4. A confession establishes the offence; a discovery statement establishes only knowledge of a place or an object.
  5. A confession engages Section 24 in a joint trial; a discovery statement does not, and is not receivable against a co-accused at all.
  6. Where both fail, the conduct of pointing out survives under Section 6(2), and it requires neither custody nor a discovery.

9. Related Topics and Provisions

Topic or provision

Connection

Discovery Statement — Proviso to Section 23(2)

The conditions, the fact discovered, and the doctrine of confirmation by subsequent facts

Confession under Sections 22, 23 and 24

The prohibition of which the proviso is the sole exception

Confession vs Admission

The definition of confession, and the consequences of the classification

Confession of Co-Accused — Section 24

Why a discovery statement does not reach a co-accused

Conduct of the Accused as Circumstantial Evidence

The third route, under Section 6(2)

Recovery as Circumstantial Evidence

The recovery treated as a circumstance in a circumstantial case

Section 39, BSA

Expert opinion connecting the article recovered to the offence

Section 105, BNSS, 2023

Audio-video recording of search and seizure