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Retracted Confession under the Indian Evidence Act, 1872

 The Concept of Retracted Confession has been derived by the definition of Mr. Justice Stephen in his digest of Law of Evidence and obtains no definite meaning. Confession has been mentioned in the Indian Evidence Act for the very first time under Section 24 of the Indian Evidence Act, 1872.

This led to the evolution of the concept of retracted confession keeping in mind the rights of the accused that has mainly been derived from Article 20(3) of the Constitution of India. This has led the courts to question the reliability of such a confession and the intention behind the accused who is making such a confession.

This paper seeks to understand the various circumstances under which the confession is relied upon for the purpose of passing the order of conviction. Lastly, in the Light of the Ajmal Kasab case, the author seeks to identify the various principles in terms of the evidentiary value of the retracted confession.

Introduction
The Law in India had been codified in the second half of the nineteenth century. Prior to the same, the people in the presidency towns and various other states were strictly governed by the local laws along with the various courts established by the Royal Charter selectively introducing certain principles of the English Law.

Between the years of 1835 and 1853, various Acts had been passed by the Indian Legislature thereby introducing various reforms in the Context of India Evidence Act. The first uniform legislation for the Indian Evidence Act had been drafted by the Law Commission of India in the year of 1868. This bill was subsequently dropped as it felt that it was not sufficient in terms of ensuring that the pre-supposed knowledge of the various principles of the English Rules.

The complete exclusion of the custodial confessions from the evidence along with the various cases in confession that are leading to the discovery of any fact that was carried in the present Act with the various sections that deal with the confession (Sections 24, 25, 26, 27, 28, 29, 30 of the Indian Evidence Act,1872 and Sections 161 and 164 of the Code of Criminal Procedure, 1973) has been successfully carried forward. The Act had been laid down with the purpose of establishing rules relating to the evidence.

The term confession has not been defined in the Indian Evidence Act, 1872 and it attains its first appearance in section 24 of the Indian Evidence Act. Mr. Justice Stephen defined the term confession as an admission made at any time and by a person who is charged with a crime. Thus, the accused will amount to making a confession if it fulfills the following requirements; a) Explicit admission of guilt or b) inference as to guilt can be drawn from the statements made by the accused.[1]

Confession is of two kinds namely:
a) Judicial Confession and
b) Extra-Judicial Confession.

Judicial Confession is that which is made before a Magistrate or in Court in the due course of legal proceeding whereas Extra Judicial Confession is made anywhere by the accused than before the Magistrate. In a case[2] the Supreme Court held that an extra judicial confession can be relied upon only if it stands clear and consistent.

Whereas in the case of Balwinder Singh v. State[3] the Supreme Court held that in the case of an extra-judicial confession, the credibility of the person making such a confession is tested and the courts will have to see whether the person making such a statement is trustworthy or no.

A retracted confession is a confession voluntarily made by a person and subsequently retracted. The credibility of such a confession is a matter to be decided by the court according to the facts and circumstances of each case and if the court is of the opinion that such confession is proved; the court is bound to act upon it so for as the person making the confession is concerned. The retracted confession may also form the basis of conviction and punishment if it is believed to be true and voluntary.

Retracted confession can be used against the person making it if it is supported by independent and corroborative evidence.[4] In the case of Pyare Lal v. State of Rajasthan[5] the Supreme Court held that a retracted form of confession can form the basis of a conviction if and only if the Court is satisfied that it was true and was made voluntarily.

Relevant Provisions
Section 24 made all the confessions made by an accused under any form of inducement by the means of either threat or promise from any person as irrelevant in any criminal proceeding. It was held in a case[6] that if the circumstances are such that the Courts believe the witness and is satisfied that such a confession is made on a voluntary basis, an order of conviction can be founded on the same.

The conditions of irrelevancy under section 24 of Indian Evidence Act, 1872 are as follows:[7]

a) The confession must be a result of inducement or a threat or a promise;
b) Inducement, etc. should proceed from a person in authority;
c) It should be relating to the charge that is in question;
d) It should obtain a worldly benefit or any form of disadvantage

The Confession must be a result of inducement or threat or a promise

A confession will justly be admitted if and only if it is voluntary and any confession that is obtained by the means of a threat, promise or inducement cannot be admitted.[8] An inducement to confess may be upon a promise of pardon. A promise or threat made to one accused will not render a confession made by another, who was present and heard the inducement, irrelevant.[9]

Person in authority
The particular inducement or threat caused must flow from a person who has authority. This refers the government officials who are having a particular authority due to their position in the services. Every government official is the person who is capable of influencing the course of prosecution.[10]

In Reg v. Navroji Dadabhai,[11]W, a traveling auditor within the services of the G.I.P. Railway Co., having discovered defalcations within the accounts of the defendant, who was a booking clerk of the Company, went to him and told him that, he had better pay the money than go to jail, and added that it would be better for him to tell the truth, after which the accused was brought before the Traffic Manager in whose presence he signed a receipt for, and admitted having received a certain sum. The accused was subsequently put on his trial for criminal breach of trust. It was held that the words used by W, constituted an inducement to the accused to confess, and that W was a ‘person in authority’ and, therefore, the evidence was inadmissible.

The Inducement, threat or promise should be in reference to charge

Thirdly, the inducement, threat or promise should be in reference to the charge in question. This specifically so stated in the section itself which says that the inducement, threat or promise must have reference to the charge against the accused person.

Thus, it is necessary for the confession to be exclude from evidence that the accused should labour under influence that in reference to the charge in question his position would be better or worse according as he confesses or not. Inducements in reference to other offences or matters or offences committed by others will not affect the validity of the confession.

Thus, where a person charged with murder, was made to confess to a Panchayat which threatened his removal from the caste for life, the confession was held to be relevant, for the threat had nothing to do with the charge.[12]

Cause Disadvantage of any form

The last condition for Section 24 to come into play is that the inducement, threat or promise must be such as is sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making the confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Thus, the evil which is threatened to him or the benefit which is promised to him must be of material, worldly or temporal nature.[13]

Section 25 of the Indian Evidence Act, 1872 makes irrelevant all the confessions made to a police officer as irrelevant. This is to ensure that no torture is induced upon the accused by the police officer. Under this Section a confession made to a police officer is inadmissible in evidence except so far as provided by Section 27 of the Indian Evidence Act, 1872. Generally speaking, that the principle upon which the rejection of confession made by an accused to a police officer or while in the custody of such officer is founded is that a confession thus made or obtained is untrustworthy.

The broad ground for not admitting confessions made to a police officer is to avoid the danger of admitting a false confession.[14] The only exception will be in case of Section 15 of Terrorist and Disruptive Activities (Prevention) Act. This has now been replaced by The Prevention of Terrorism Act. Thus, confessions made before the police under this can be used against the accused.

Section 26 deals with the confession by the accused while in custody of the police is not required to be proved against him. It provides for the fact that no confession made by any person whilst in the custody of a police officer, unless made before the magistrate and shall be proved against such a person.

The Section recognizes one exception. If the accused confesses while in police custody but in the immediate presence of a Magistrate, the confession will be valid. The presence of a Magistrate rules out the possibility of torture thereby making the confession free, voluntary and reliable. In the case of Zwing Lee Ariel v. State of M.P.[15]it has been held that immediate presence of the Magistrate means his presence in the same room where the confession is being recorded. His presence in the adjoining room cannot afford the same degree of protection against torture.

Section 27 deals with the amount of information obtained from the accused that is required to be proved. It provides that when any fact is deposed to as discovered as a consequence of the information received by the accused under police custody and is distinctly related to the facts of the case may be proved.

Section 27
is an exception to the rules laid down in Section 25 & 26 because this section makes a confession relevant even if it is made to a police officer in police custody. But the condition is that the confession made has led to the discovery of some facts and that too proves that part only which can be proved by the facts discovered.

The essentials of Section 27 are as follows:

a) The facts deposed must be discovered as a consequence of information;
b) Information must be received from the person who is accused of an offence;
c) The accused must be in police custody;
d) Such information should distinctly relate itself to the facts discovered.

Section 28 deals with the confession made after removal of impression caused by inducement, threat or promise, relevant. It provides that if such a confession as is referred to in Section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant. In the case of Abdul Razak v. State of Maharashtra,[16] it was held that confession made after removal of impression caused by inducement, threat or promise is relevant under Section 28 of the Indian Evidence Act, 1872.

Section 29 deals with the confessions that are otherwise relevant not to become relevant due to promise of secrecy and etc.

A confession is made relevant even it is obtained in the following circumstances:

a) On promising the accused that the information obtained will be kept a secret or that it will not be used against him

It may be recalled that an admission made in a civil case under promise that evidence of it shall not be given is not relevant, (Section 23) the policy being that litigants should be encouraged to compromise their differences. That policy has no relevance to criminal cases because here the public interest lies in prosecuting criminals and not compromising with them. Consequently, therefore, where an accused person is persuaded to confess by assuring him of the secrecy of his statements, the confession is nevertheless relevant.[17]

b) By practicing a deception on the accused for the purpose of obtaining his confession

When the confession is the outcome of a fraud being played with the accused, it is stands relevant. Thus, where the two accused persons were left in a room where they thought they were all alone, but secret tape recorders were recording their conversation, the confessions thus recorded were held to be relevant. Similarly, where an accused was persuaded to submit for a medical examination for an innocent purpose which was in fact conducted for criminal purpose, his statements to the doctor and the doctor’s report were held to be relevant at the discretion of the Court. A confession secured by intercepting and opening a letter has also been held to be relevant.[18]

c) Circumstances when the accused was drunk

A confession obtained by intoxicating the accused is equally relevant. The law is concerned to see that the confession is free and voluntary and if this is so it does not matter that the accused confessed under the influence of drink. According to the English practice the judge will have discretion in the matter.

Section 30 deals with the consideration of proved confession affecting the person making it and others jointly under for the same trial for same offence. It provides that 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 person is proved, the court may take into consideration such confession as against such other persons as well as against person who make such confession.

Reference to the case of State of Maharashtra v. Mohd. Ajmal Mohd. Amir Kasab[19]
The courts held that it is safe to place reliance on retracted confessions if it can be established that the confession is true and has been made voluntarily. It is also important to keep in mind that the confession has been corroborated sufficiently. The courts have the power to discard the exculpatory facts and consider the inculpatory facts.

The courts laid down the following essential principles:

a) A confession can be acted upon only if the court is satisfied that it is true and has been made voluntarily.
b) The confession must stand true to the facts and should not counter it.
c) It is a rule of judiciousness as to not base a conviction on the basis of a confession that has not been corroborated

Conclusion
A Confession is an admission made by a person charge with a crime at any time stating or suggesting the inference that he was committed that crime. Confession is received in criminal cases upon the principle that a person will not make an untrue statement against his own interest. Confession may be divided into two categories; judicial confession and extra-judicial confession. Judicial confessions are those confessions which are made before a Magistrate or in Court in the due course of legal proceedings.

Extra-judicial confessions are those confessions which are made by the accused anywhere else than before a Magistrate or in Court and extrajudicial confession can be made to any particular person or to a group of persons.

Judicial confession is a good piece of evidence whereas extra-judicial confession is a weak piece of evidence and it should be taken with great care and caution. Apart from judicial and extra-judicial confession there is a retracted confession also. Retracted confession can be used against the person making it if it is supported by independent and corroborative evidence.

Sections 24, 25, 26 and part of Section 27 of the Indian Evidence Act, 1872 deals with irrelevant confession. Apart from Section 27, relevant confessions have been dealt with under Sections 28, 29 and 30 of the Indian Evidence Act, 1872.

Inculpatory and exculpatory statements in a confession; the Supreme Court held that confession must be taken as a whole and exculpatory part should not be thrown or rejected out rightly but it should be put to other evidence. If there is no sufficient evidence to support the exculpatory part, there is nothing wrong on rejecting the same. Confession is different from admission. Confession is made in criminal cases whereas admission is made in civil cases.

Recommendations
# Retracted confession should undergo heavy scrutiny before relied upon
# Tests should be laid down for the purpose of ensuring the Courts satisfaction in terms of the honest and voluntary behaviour of the retracted confession
# A witness should be relied upon for the purpose of corroborating the retracted confession
# Non-reliance upon retracted confession should be made an exception to Article 20(3) of the Indian Constitution. This is because, a retracted confession has the ability to violate the rights of a victim.

Table of Authorities
Cases
#Abdul Razak v. State of Maharashtra, AIR 1970 SC 2831 - 5
#Balwinder Singh v. State, 1975 Cr. LJ 282: AIR 1975 SC 258 - 2
#Emperor v. Mohan Lal, (1881) ILR 4 All 46 - 3
#Kuruma v. The Queen, (1955) AC 197 - 3
#Paulose v. State of Kerala, 1990 Cr. L.J. 108 Ker - 4
#Pyare Lal v. State of Rajastha, AIR 1963 SC 1094 - 2
#Reg v. Jacobs, (1849) 4 Cox 54 - 3
#Reg v. Navroji Dadabhai, (1872) 9 BHC 358 - 3
#S.K. Modi v. State of Maharashtra (1979) 2 SCC 58 - 3
#State of Maharashtra v. Mohd. Ajmal Mohd. Amir Kasab (Conformation Case no. 2 of 2010) 6
#State of Punjab v. Gurdeep Singh (1999) 7 S.C. 618 - 2
#Zwing Lee Ariel v. State of M.P, AIR 1954 SC 15 - 4

Articles
#Ritesh Kumar & Shashikant, Confession Under The Indian Evidence Act, 1872, IJSARD, 32, 31-41 - 2
# R.K. Raizada, Confession in the Law of Evidence: An Incongruity, JILI, 90-106, 1972

Book

# Lal Batuk, The Law of Evidence, 20th Edition, Central Law Agency, Allahabad, 2013 - 2
#Singh Avtar Dr., Principles of the Law of Evidence, 21st Edition, Central Law Publications, Allahabad, 2014 - 2

Legal Database

# Manupatra
# SCC Online
# Jstor

End-Notes
[1] Lal Batuk, The Law of Evidence, 20th Edition, Central Law Agency, Allahabad, 2013, p.166.
[2] Ibid, P. 175.
[3] Balwinder Singh v. State, 1975 Cr. LJ 282: AIR 1975 SC 258.
[4] Ritesh Kumar & Shashikant, Confession Under The Indian Evidence Act, 1872, IJSARD, 32, 31-41.
[5] Pyare Lal v. State of Rajastha, AIR 1963 SC 1094.
[6] State of Punjab v. Gurdeep Singh (1999) 7 S.C. 618.
[7] Singh Avtar Dr., Principles of the Law of Evidence, 21st Edition, Central Law Publications, Allahabad, 2014, p.146.
[8] Kuruma v. The Queen, (1955) AC 197.
[9] Reg v. Jacobs, (1849) 4 Cox 54.
[10] S.K. Modi v. State of Maharashtra (1979) 2 SCC 58.
[11] Reg v. Navroji Dadabhai, (1872) 9 BHC 358.
[12] Emperor v. Mohan Lal, (1881) ILR 4 All 46
[13] Singh Avtar Dr., Principles of the Law of Evidence, 21st Edition, Central Law Publications, Allahabad, 2014, p.152.
[14] Paulose v. State of Kerala, 1990 Cr. L.J. 108 Ker.
[15] Zwing Lee Ariel v. State of M.P, AIR 1954 SC 15.
[16] Abdul Razak v. State of Maharashtra, AIR 1970 SC 2831.
[17] Singh Avtar Dr., Principles of the Law of Evidence, 21st Edition, Central Law Publications, Allahabad, 2014, p.173.
[18] Ibid, P. 173.
[19] Confirmation case 2 of 2010.

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