In this blogpost, Sudhi Ranjan Bagri, Student, National Law Institute University, Bhopal writes about what is confession, rights to retract confession and the evidentiary value of retracted confession.
Introduction
Confessions
There is no definition of the word “confession” in the Indian Evidence Act[1] and it appears for the first time in Section 24. It is clear that confessions are merely a species of admission which is defined under Section 17 of the Act. It is correct to say that every confession necessarily is an admission but every admission does not necessarily amount to a confession. Sections 17 to 23 deal with admissions whereas Sections 24 to 30 deal with confessions.
Sir Stephen in his Digest of the law of Evidence defines confession as “an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”
Lord Atkin has observed[2] that, “A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession.”
Of Probative value of confessions
A confession is substantive evidence against its maker, if it has been duly recorded and suffers from no legal infirmity, it would suffice to convict the accused who made the confession, though as a matter of prudence, the Court usually expects at least some corroboration before acting upon it. But before acting upon a confession, the Court must be satisfied that it is voluntary and true. Voluntariness depends upon whether there was any threat, inducement or promise. The truth is to be judged in the context of the entire prosecution case i.e. whether it fits into the proved facts and does not run counter to them. If these two conditions are satisfied, it becomes the most reliable piece of evidence against the maker.
Of Retracted Confessions
Retraction may be defined as the act of recanting.[3] To recant means to withdraw or renounce prior statements formally.[4] A retracted confession is one which is withdrawn or retracted later on by the person making it.
Retraction of statements is something that happens in most criminal cases. The reason behind the same may be the inadequate police protection or the ill-developed mechanism for witness protection or the inherent securities of the witnesses or the accused under the influence of the status of the opposing party as happens in almost all the high profile cases.
It should be noted here that the Act makes no distinction whatsoever between a retracted confession and an unretracted confession and both are equally admissible and may be taken into consideration against the accused though it may be that less weight would be attached to a retracted confession.[5]
Right to Retract Confessions
Retraction of a confession is very common since it is often procured through non-validating means An extraordinarily large number of confessions, in criminal cases, culminate in retractions, as a matter of course.[6] In India, retractions are as plentiful as confessions.[7] This goes to show that most confessions do no proceed from a feeling of penitence and remorse as they should, but that they have their source in the inducement, threat, torture, hope or any other non-validating cause.[8] Thus, to retract from a confession is the right of the confessor and all the accused have invariably adopted that right.[9]
Concept of Retraction flows from the Constitutional Right against Self-Incrimination
Article 20(3) of the Constitution of India, 1950 guarantees protection against the compulsion to be a witness against oneself. The application of this provision extends to statements made during police interrogations.[10] This means that no person can be forced to make a confession, against his will. Thus, the test of relevancy of a confession is whether it is voluntary or not.[11] Since there is a danger that the confessor may implicate himself against his will, the law regarding the same is so strict that a confession that is not voluntary is rejected even if it is true.[12] Sections 24 to 30 of the Evidence Act have been legislated to take care of this constitutional right by excluding from evidence all self-incriminating statements that have not been made voluntarily.[13] A right to retract is important because a retraction puts the court on enquiry as to the voluntary character of the confession.[14] Moreover, to withdraw from what has been said previously is to be interpreted as an extension of civil liberty.[15]
Retraction must be affected, especially when the Confession is Involuntary
When a confession has been retracted, the court has a duty to evaluate the evidence concerning the confession by looking at all aspects.[16] The first test that the court is required to apply with regard the same is to ascertain whether the confession was voluntary or not.[17] Satisfaction of this test is a sine qua non for admissibility of the confession in evidence.[18] The word ‘voluntary’ used in respect of a confession refers to a confession that is not caused by inducement, threat or promise.[19] If it appears to the court that a confession has been procured using any inducement, then it would be rendered irrelevant.[20] A well-grounded suspicion based on the circumstances of the case may exclude a confession[21] since the use of the word ‘appears’ in Section 24 suggests a lesser degree of probability than ‘proof’ defined in Section 3 of the Evidence Act.[22] It is idle to expect the accused to ‘prove’ the inducement for in most cases such proof cannot be available.[23] In light of the same, anything from the barest suspicion to positive evidence is considered sufficient for discarding a confession.[24]
Evidentiary value of Retracted Confessions
status of retracted confessions under the Act
The Act makes no distinction whatsoever between a retracted confession and an unretracted confession and both are equally admissible and may be taken into consideration against the accused though it may be that less weight would be attached to a retracted confession.[25]
Particulars of a retracted confession
As the confession is required to be clear, specific and unambiguous, its retraction should also not be ambiguous, vague or imaginary. The person alleging retraction of confession or his earlier inculpatory statement must satisfy the court that that he had withdrawn from his statement at the earliest possible time[26] and without any afterthought or advice and must give reasons for the same.[27]
Weight attached to a retracted confession
The weight to be attached to a retracted confession must depend on the circumstances under which the confession was given, and the circumstances under which it was retracted including the reasons given for retraction.[28]
Importance of corroboration
It is only as a matter of prudence and caution which has sanctioned itself into a rule of law that retracted confession cannot be made the sole basis of conviction unless it is corroborated. It is not necessary that each and every circumstance mentioned in the confession is separately and independently corroborated. It would be sufficient if the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession[29] i.e. corroborated in general particulars.
It is also a general rule that it is unsafe to base the conviction of the accused upon his retracted confession even when it is held to be true and voluntary unless it is corroborated in material particulars by independent evidence.[30]
Value of retracted confession against Co-accused and Accomplice
Where more persons than one are being tried jointly for the same offence, a confession made by any one of his co-accused can be taken into consideration by the court not only against the maker but also against his co-accused. The Act nowhere provides that if a confession is retracted, it cannot be taken into consideration against the co-accused or the confession accused.[31] A retracted confession can be considered against but it cannot be the basis for conviction of co-accused.[32]
However, the standard of corroboration is quite different in such cases. In the case where the resiled statement is being used against the confessing accused, general corroboration is sufficient whereas in cases of co-accused or an accomplice, corroboration in material particulars in necessary.[33]
It should be noted that it has been held that a retracted confession can be taken into consideration to indicate the prima facie involvement of others.[34]
Comparison with English Law
It is submitted that the Law in England differs from that in India to the extent that an accused person can be convicted on his own confession, even when it is retracted if the Court is satisfied with its truth. In India, there is a further requirement of corroborative evidence to support it.[35]
Conclusion
In conclusion, it is submitted that retraction is a very important principle of the Law of Evidence. It has a strong practical foundation. Furthermore, to give a gist of this article, the following principles constitute the law relating to retracted confessions:
- It is not illegal to base a conviction upon the uncorroborated confession of an accused person, provided that the court is satisfied that the confession was voluntary and true in fact.
- From the viewpoint of legality, the fact that a confession has been retracted is immaterial,
- A confession is not regarded as involuntary merely because it has been retracted.
- Before using the retracted confession, it must be proved to be true and voluntary.
- In cases of co-accused, the confession must be corroborated by material particulars.
- A person has a general right of retraction which flows from the principle against self-incrimination.
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[1] The Indian Evidence Act, 1872 [Hereinafter “the Act”]
[2] Pakala Narayan Swami v. Emperor, AIR 1939 PC 47
[3] P Ramanatha Aiyar, Advanced Law Lexicon, 4122 (3rd Edition, Volume IV, Wadhwa and Co, Nagpur, 2005)
[4] P Ramanatha Aiyar, Advanced Law Lexicon, 3977 (3rd Edition, Volume IV, Wadhwa and Co, Nagpur, 2005)
[5] Re: Kodur Thimma Reddi and Ors, AIR 1957 AP 758
[6] Queen Empress v. Babulal, (1884) ILR 6 All 509
[7] R v. Thompson, [1893] 2 QB 12
[8] R v. Thompson, [1893] 2 QB 12; The Deputy Legal Remembrancer v. Karuna Baistobi (1895) ILR 22 Cal 164; Dikson Mali v. Emperor, AIR 1942 Pat 90
[9] State of Tamil Nadu v. Kutty @ Lakshmi Narasimhan, AIR 2001 SC 2778; Rajen Boro v. State of Assam, 2003 (2) GLT 632
[10] Nandini Satpathy v. P L Dani, AIR 1978 SC 1025
[11] Kalawati v. The State of Himachal Pradesh, AIR 1953 SC 131
[12] Emperor v. Bhagi Vedu, (1906) 8 BomLR 697; Emperor v. Panchkari Dutt, (1925) ILR 52 Cal 67; In Re: Tadipamula Satyanarayana, AIR 1959 AP 419
[13] Ram Lalwani v. The State, 1981 CriLJ 97 (Del)
[14] Emperor v. Krishna Babaji, (1933) 35 BomLR 728
[15] Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230
[16] State of Tamil Nadu v. Kutty @ Lakshmi Narasimhan, AIR 2001 SC 2778; Rajen Boro v. State of Assam, 2003 (2) GLT 632
[17] Shankaria v. State of Rajasthan, AIR 1978 SC 1248
[18] Id.
[19] Shanker Rao Chitnavis v. Ganpat Rao Pande, AIR 1925 All 606
[20] The Indian Evidence Act 1872, §24
[21] Emperor v. Panchkari Dutt, (1925) ILR 52 Cal 67
[22] Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094
[23] Vishnu v. Achut, AIR 1925 All 627; Bhukhin v. Emperor, AIR 1948 Nag 344
[24] Emperor v. Panchkari Dutt, (1925) ILR 52 Cal 67
[25] Re: Kodur Thimma Reddi and Ors, AIR 1957 AP 758
[26] Taj Mohammad Khan v. State of Karnataka, 1998 CrLJ 2312 (Kant)
[27] Subramania Goundan v. The State of Madras, AIR 1958 SC 66
[28] Bhuboni Sahu v. The King, AIR 1949 PC 257
[29] State of Uttar Pradesh v. Boota Singh & Ors, AIR 1978 SC 1770
[30] Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094
[31] Ram Prakash v. The State of Punjab, AIR 1959 SC 1
[32] Shrishail Nageshi Pare v. State of Maharashtra, (1985) 2 SCC 341
[33] Subramania Goundan v. The State of Madras, AIR 1958 SC 66
[34] Mohan Wahi v. State, 1982 CrLJ 2040 (Del)
[35] Yap Sow Keong & Anor v Public Prosecutor, [1947] MLJ 90
