NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

LAW OF EVIDENCE-I

PROJECT

8 th Trimester

RETRACTED CONFESSION AND IT JUDICIAL ANALYSIS

PROJECT SUBMITTED TO: Dr. (Prof) Sanjay Yadav

SUBMITTED BY:

Pavi jain

2008 BA LLB 35

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Introduction

The present paper is aimed at ascertaining the evidentiary value of a retracted confession by

an analysis and possible critic of the decisions of the Supreme Court of India. The subject

demands a clear understanding of the term‘confession’ as it is understood in the criminal

jurisprudence in Indian legal regime. Without a proper understanding of the term confession

it won’t be easy to arrive at a clear understanding of the evidentiary value of a retracted

confession. Before proceeding any further, it must also be understood that the present topic

has posed some of the most controversial questions in Indian Legal system in recent times. In

all the often quoted media trials, the question of evidentiary value of retracted confession has

taken a position of central importance. In the present article the researcher aims to clarify the

position of a retracted confession in Indian legal system.

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WHAT IS CONFESSION

The word confession has not been defined in the Indian Evidence Act.

A confession is a species belonging to the genus of admission which is defined in  S. 17 of

the IEA. A confession is an admission by the accused of a crime stating or suggesting an

inference that he had committed the crime. Confession automatically becomes a relevant fact

u/S. 21 IEA which states that admission is a relevant fact and it may be proved against the

maker or his representative in interest.

1 Confession being a kind of admission, the same rule enumerated in S. 17 hold true for

confession as well. From a reading of the relevant sections which speak about different

aspects of relevancy of admission, it can be safely concluded that the voluntary nature of a

confession is one of the essential requirements of a confession to make it a relevant fact. It’s

also true that an element of volition is ingrained in the concept of confession.

2 This creates a peculiar problem in situation where the accused retracts the confession he

had previously given. Ascertaining the evidentiary value of a retracted confession is

confronted with a conflict of interest. At one hand the element of volition in a confession

which can not be neglected and on other hand the greater social interest of expediency of

Court proceeding needs to be balanced.

All persons are not competent to admit as a confession has to be made by the accused. The

consideration of voluntary nature of confession is specifically dealt with in S. 24, IEA. The

section clearly lays down that in order to be admissible as substantive evidence against the

maker, confession must be voluntarily made. If it appears to the Court that the confession is

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not voluntary in nature, and is caused by threat, inducement or any promise, then such

confession will be irrelevant in the criminal proceeding.

3 It’s clear from the reading of the section that the law intends a confession to be something

completely out of the volition of the maker to make it relevant under IEA. Thus, a problem

that is often confronted is the question of evidentiary value of a retracted confession.

A retracted confession is  simply a confession which has been retracted by the maker at any

point subsequent to making it in course of the proceeding. The question is what kind of

evidentiary value should be attributed to such a retracted confession. Clearly, it cannot have

the same force of a normal confession neither can it be completely vitiated as having no

evidentiary value.

One proposition regarding law at this point is when a confession is retracted, it casts further

shadow of doubt on the reliability. It must also be stated at this point that any kind of

admission is widely considered to be a  weak piece of evidence.

4 The appreciation of a confession is dependent on its nature : whether it is voluntarily made

or not is the primary consideration for its appreciation. Now, as already stated, retraction

casts doubt on the nature and reliability of the evidence but once the confession is established

to be voluntarily made, it’s difficult to say that retraction will cast shadow on the reliability

aspect of the confession. In such a situation a retraction at best can cause some apprehension

as to the voluntary nature of the confession. It’ll put the Court in further quest as to the nature

of the confession. But this is also dependent on the circumstance of  the case. If in a case

where a confession is established beyond any scope of doubt to have been made voluntarily,

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then a retraction might not even be capable of causing any apprehension as to the nature of

confession. In such a situation Court can even rely conviction on the confession. It’s a matter

of appreciation of the nature of evidence. So if a Court thinks that it’s important to look for

corroboration of the confession which has been retracted, it’s a decision specific to the

circumstance of that particular case necessary for the proper appreciation of the confessional

evidence. It’s a matter of prudence of the Court for proper appreciation and not a rule of law.

The Honorable Supreme Court also shared the same view and stated that  corroboration of

retracted confession is a matter of prudence on the part of the Court  and not a rule of law

thereby accepting the argument that appreciation of the confessional evidence is the single

most important consideration. All incidental events like retraction are events which are also

to be considered while ascertaining the nature of confession along with a host of other events,

facts. There can be situations where facts, events proving the voluntary nature of the

confession are so overwhelming that even on retraction a conviction is  based on the

confession without any corroboration.

The general logical position laid down by the judiciary regarding the law of retracted

confession is that retraction of a confession is an event of varying importance. Its significance

depends on a lot of things like the circumstance in which the retraction was made, the

circumstance in which confession was made and the nature of confession. The event of

retraction or the effects of retraction have to be considered along with all other evidences and

circumstances relevant in deciding the truth and nature of  the confession. If in the opinion of

the Court in a particular circumstance of a case the nature and truth of a confession are over-

whelmingly established, the consideration of appreciation of the nature and truth are already

satisfied, a subsequent retraction would have hardly any effect. The Court would require no

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corroboration in such a case. If the Court thinks it fit to seek corroboration after considering

the effect of retraction along with all other evidences on the truth and nature of the

confession, it can always do so and that’s a matter of prudence on part of the Court to satisfy

itself as to the truth and nature of the confession. Corroboration is not a rule of law, but a

matter of prudence in case of retracted confession. It’s fit to state that thus, corroboration is

not a legal burden imposed on the judiciary but it’s rather a tool given to the judiciary to

ascertain the nature and truth of the confession in cases where it can not be conclusively

ascertained from other relevant evidences and circumstances of the case.

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Mere retraction of the confession may not be sufficient to make
confessional statement irrelevant

In the case of: Meghraj Jain vs. UOI, Decided by: Bombay High Court

Pursuant to a search under FERA, the premises of the appellant were searched on 11.4.1989.

Foreign currency was recovered though no incriminating material was found. In his statement

recorded on the same day, the appellant confessed to indulging in various foreign exchange

transactions. One Mr. Narendra Mirani also confessed that the foreign exchange seized from

him during the search was purchased by him from the appellant and the rates of purchase

were given. The appellant was arrested on 12.4.1989 and on 14.4.1989 he filed an application

before the Magistrate and retracted the confessional statement on the ground that it was

false and obtained under duress. Narendra Mirani also retracted his confession. It was

argued that as, except the retracted confessional statement of the appellant and Narendra

Mirani, there was no material to establish the charges against the Appellant, the

conviction was illegal. On appeal, HELD, dismissing the appeal:

(1) The effect of Vinod Solanki vs. UOI (233) ELT 157 (S.C.) is that in criminal or quasi

criminal proceedings, a person accused of commission of offence under FERA has not to

prove to the hilt that confession has been obtained from him by inducement or threat by the

person in authority. However, when confession had been retracted, the Court must bear in

mind the attending circumstances and other relevant factors to come to conclusion whether

the confession was voluntary and was not obtained by any inducement, threat or force. At the

same time, mere retraction of the confession may not be sufficient to make confessional

statement irrelevant for the purpose of quasi criminal proceedings and the Court is

obligated to take into consideration the pros and cons of confession and retraction made

by the accused. 

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(2) The effect of K.I. Pavunny vs. AC (90) ELT 241 (S.C.) is that if a confessional statement

is retracted, the Court is required to examine whether it was obtained by threat, duress or

promise and also whether the confession is truthful. If it is found to be voluntary and truthful

inculpatory portion of the retracted confession can be acted and even conviction can be based

upon the same. However, prudence and practice require that in case of retracted

confession Court should seek assurance by way of corroboration from other evidence

adduced. A general corroboration is sufficient.

(3) On facts, the appellant took more than two days to retract the statement even after

production before the Magistrate. There is no plausible explanation retraction was not

done at first available opportunity. Further, foreign exchange was recovered and when

asked to explain the same, confessional statements were made by the appellant and Narendra

Mirani. The confessions accordingly stand corroborated by the foreign exchange. In these

circumstances, the confessional statements cannot be said to be made under force, duress,

coercion or because of inducement from any person in authority. Accordingly, they can be

acted upon despite retraction.

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 RELATED JUDGEMENTS

1. Vinod Solanki vs. UOI (Supreme Court) 

A person accused of commission of an offence is not expected to prove to the hilt that

confession had been obtained from him by any inducement, threat or promise by a person in

authority. The burden is on the prosecution to show that the confession is voluntary in

nature…

2. CIT vs. Uttamchand Jain (Bombay High Court) 

In view of the retraction of the statement and the decision of the Supreme Court in Vinod

Solanki V/s. UOI 2008 (16) Scale 31, the retracted confession can be relied upon only if

there is independent and cogent evidence to corroborate the confession

3. CIT vs. Dhingra Metal Works (Delhi High Court) 

S. 133A does not mandate that any statement recorded under that section would have

evidentiary value. It merely enables the authority to record the statement of any person

which may be useful for, or relevant to, any proceeding under the Act.

4. State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600

 This was an appeal against convictions in view of attacks made on parliament. The matter

was relating to admissibility and evidentiary value of evidence that retracted confessions

cannot be acted upon by Court unless it is voluntary and can be corroborated by other

evidence. Confession of accused can be used against co-accused only if there is sufficient

evidence pointing to his guilt confession made under POTA cannot be used against co-

accused as POTA operates independently of Indian Evidence Act and Indian Penal Code.

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Section 10 of Evidence Act has no applicability as confessionary statement has not been

relied on for rendering conviction.

Admissibility of intercepted phone calls, intercepted phone calls are admissible piece of

evidence under ordinary laws even though provisions of POTA cannot be invoked as it

presupposes investigation to be set in motion on date of its interception. Impact of procedural

safeguards under POTA on confession. Confession made involuntary is inadmissible

evidence. If procedural safeguards have not been complied it will affect admissibility and

evidentiary value of evidence being proved all charges beyond reasonable doubt convictions

were upheld.

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CONDITION OF WITNESSES IN INDIA

MAJOR INDIAN CASES:

(A) THE BEST BAKERY CASE:

In the ghastly communal riots that ravaged the State of Gujarat in 2002, as a result of the

aftermath of the Godhra Train-burning incident, 14 people were burnt alive at a place called

“Best Bakery”. Zahira Sheikh was the prime witness to the incident. She lost many of her

family members in the tragedy. In May 2003, Zahira and several other eye-witnesses

retracted from the statements made during investigation and turned hostile in a fast-track

Court set up to try riot cases. Zahira was threatened by high-profile politicians and goons to

refrain from giving testimony against the accused, whom she had seen killing members of her

family, in front of her eyes. Even though the trial was shifted to Mumbai, she remained

hostile to the prosecution and on 8th March, 2006, she was convicted and sentenced by the

Mumbai Special Sessions Court for perjury.

(B) NARODA PATIA CASE:

Mohammad Shakur Sayyad, a victim of the Naroda-Patia carnage in the year 2002, who was

also a key witness in that case, was attacked and beaten up by a group of thirty people, while

he was sitting outside his shop at the Faisal Park Society in Vatva. He had been provided with

only one police guard. The guard however had retired for the day, when he was attacked.

What is shocking in this case was that such a key witness was provided with only one guard

who would have looked to save his own life rather than that of the witness, when Sayyad was

attacked.

(C) KETAN THIRODKAR CASE:

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In another instance, the Bombay High Court had given protection to an ex-journalist Ketan

Thirodkar, because he had been under threats soon after he had filed the police complaint,

which disclosed a series of illegal acts committed by the police in connivance with the

underworld. However, the Public Prosecutor opposed the grant of police protection on the

ground that Thirodkar himself was involved with the underworld. Thirodkar was given

protection only for a limited period, not realizing that the persons he is to implicate would

cause serious injury to him the moment the temporary police protection was removed

(D) TWIN BLASTS CASE:

Shivnarayan Pandey, the taxi driver who gave clues in the Twin Blasts Case at Malegaon on

25th August, 2003 had to be given extra protection by the Mumbai police, when the trial was

being conducted at Mumbai. The identity of the witness was leaked to the media by a police

officer on the day of the Blasts, which resulted in the witness turning Hostile. The trial Court

Stated that the police officer had violated S.30 of the Prevention of Terrorism Act, 2002

(POTA), which talks about maintaining secrecy about the identity and whereabouts of a

prime witness until the final hearing of the case.

(E) BMW CASE:

This was a hit-and-run case that had taken place in New Delhi. The main accused in this case

was Sanjeev Nanda, who was the son of a high-profile person, based in New Delhi. Some of

the witnesses who were involved gave retracted statements during the trial and turned

Hostile. Later it was found out that the accused and his father had somehow managed to

influence and win over the witnesses on their side.

(F) JESSICA LAL MURDER CASE:

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It seemed at first sight an open and shut case. A model who worked as a celebrity barmaid is

shot dead at point-blank range after refusing to serve a drink to two young men in a crowded

South Delhi watering hole. The man accused of killing her — Manu Sharma, the son of a

former Union Minister — flees the scene and absconds for an entire week before

surrendering to the Delhi police. The Jessica Lal murder case, in which a sessions court

acquitted all nine accused on the ground of insufficient evidence, is an instance of gross

miscarriage of justice and raises serious questions about the criminal justice system. The

collapse of the case is the result of two main causes. First, there were a couple of glaring

holes in the prosecution's case. Two bullets were fired, one in the air, on that fateful night and

the Delhi police maintained that they both came from the same gun; however, a forensic

report showed they were fired from different weapons. Moreover, the gun used to shoot

Jessica Lal was not recovered, a failure that suggests a lack of diligence with which the case

was investigated. However, what really sunk the case was a phenomenon that has become

disturbingly familiar in high-profile cases — that of key witnesses turning hostile. This trend,

which was recently spotlighted in the Best Bakery and the BMW hit-and-run cases, has

undermined public confidence in the criminal justice system and contributed to the abysmal

rate of convictions in India.

CHANGES IN THE CR.P.C. TO COUNTER THE PROBLEM

Certain amendments have been made to the Code of Criminal Procedure, 1973 in order to

tackle the problem of hostile witnesses. These amendments were introduced through the

Criminal Law (Amendment) Act, 2005 and the Cr.P.C.(Amendment) Act, 200810. But, so far

these amendments have proven to be ineffective in controlling this problem. These

amendments mainly relate to the

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protection of witnesses who do not know the accused as well as Victim-Witnesses who have

suffered at the hands of the accused and are deposing in Court as the Prime witness in a case.

The problem with these amendments has been that most of them have remained only on

paper. None of them have been implemented effectively because of a number vested interests

of different categories of people being involved in this regard. Therefore, it is obviously the

need of the Hour that these changes are given effect as soon as possible to reduce the

phenomenon of witnesses turning hostile at important stages of a criminal trial.

EFFORTS OF THE LAW COMMISSION OF INDIA:

The Law Commission of India in its various reports has stressed on the need for treatment

and protection of witnesses, in order to counter the problem of hostile witnesses. Some of

these reports are:

1. The 14th Report (1958) examined the question of providing adequate facilities like

travel allowance and diet money to witnesses deposing in the Courts.

2. The 37th Report (1967) examined the question of providing adequate protection to

victim-witnesses deposing in Sexual and other heinous cases.

3. The 154th Report (1996) similarly talked about the physical protection of witnesses.

4. The 172nd Report (2000) dealing with the review of Rape Laws in India suggested that

the testimony of a minor in case of a Child Sexual Abuse should be recorded at the

earliest in the presence of a Judge and a child support person. It further urged that the

Court should permit video-taped interview of the child or allow the child to testify by

a Closed-circuit television and that the cross-examination of the child should be

carried on by the Judge based on written questions submitted by the defence.

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5. In its 178th Report (2001) the Law Commission had recommended the Insertion of

S.164A in Cr.P.C. which was later given effect in 2005.

6. In its 185th Report (2003) the Commission suggested further amendments to Cr.P.C.,

1973 on the basis of which the Criminal Law (Amendment) Act, 2005 was brought

into force, containing provisions for proper recording of evidence given by witnesses.

7. In its 198th Report (2006) dealing with “Witness Identity Protection and Witness

Protection Programmes”, the Commission has talked about a multi-phase

implementation of a concrete Witness Protection Programme, which will help to keep

the whereabouts of important witnesses in a case, a secret and will punish anyone who

discloses important information relating to a witness.

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CONCLUSION

POSSIBLE SOLUTIONS TO THIS EVER-INCREASING PROBLEM

(1) Amendment to Ss. 161 & 164- The Cr.P.C.(Amendment) Act, 2008 talks about allowing

the recording of confessional and depository statements on video-tape and by other electronic

means. This will ensure that the witness is physically kept protected at an undisclosed

location and his identity is not leaked under any circumstances. But, these amendments are

still not in force which means that they have not yet become law. Therefore, these provisions

need to be enforced immediately, to make the condition of witnesses in India, somewhat

better.

(2) Contradiction of the witness as envisaged under S.145 of the Evidence Act- In order to

mitigate the harm done to the prosecution case, because of a hostile witness, a request should

be allowed to be made to the Court under S.145 of the Indian Evidence Act, to contradict and

impeach the witness against his police statement, so that there are less chances of a retracted

confession being given by the witness,

(3) Streamlining the process of investigation- The investigating Police do not obtain the

benefits of the Law of Contempt, if there is any interference with the investigation process.

This is a common problem in India because powerful people and political parties often tend

to manipulate police investigations. The Law Commission of India, in its 14 th Report,

suggested the separation of law and order from investigation and consultation of prosecuting

officers at all important stages of the prosecution process.

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(4) Formulation of a comprehensive Witness Protection Program- It is submitted that the

existing witness protection regime in India is inadequate and the amendments to the Cr.P.C.,

1973 have still not come into force. Therefore, as per the recommendations of the Law

Commission of India, in its 198thReport (2006), a separate legislation for witness protection

needs to be drawn up.

This legislation should clearly define the term “Witness” and the conditions under which

witnesses may turn hostile. It should lay down stringent punishments for Perjury (giving false

evidence) and also for disclosing the identity of witnesses or failing to provide adequate

protection to them. In this regard some of the witness protection laws of other countries may

be considered. These are:

1. The Federal Witness Protection Program of USA, which talks about non-disclosure of

the identity of prime witnesses in criminal trials and the punishments for failing to

protect their identity.

2. The Witness Protection Act, 1994 of Australia which talks about the recording of

video-testimony given by witnesses and providing sufficient police protection top

prime witnesses.

3. The Criminal Justice and Public Order Act, 1994 of UK which again talks about

police protection of witnesses and non-disclosure of their identity.

4. The Witness Protection Act, 1996 of Canada which talks about the recording of

witness’ statements through video or other electronic means and their physical

relocation to an undisclosed place, to keep them away from the pressures of the

accused or anyone else related to him.

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 5.  The Witness Protection Act, 1998 of South Africa provides for the establishment of

an office called the Office for Witness Protection within the Department of

Justice.The Director of this office is responsible for the protection of witnesses and

related persons and exercises control over Witness Protection Officers and Security

Officers [Section 4]. 

BIBLIOGRAPHY

1. Dr. Pallwal Anand, Witness Protection Programme- Necessary to ensure

Justice, Criminal Law Journal, Vol. II, May, 2008

2. Desai Dhruv, Treatment and Protection of Witnesses in India- A view at the existing

legal position as regards witnesses, Criminal Law Journal, Vol. I, March, 2006

3. Mr. Kumar Sairam Sanath, The menace of hostile witnesses in Criminal Trials in

India- A closer look, Criminal Law Journal, Vol. III, July, 2006

4. Pandey Brisketu Sharan, Hostile Witnesses in our Criminal Justice System, Criminal

Law Journal, Vol. II, 2005

5. Dr. Atri Ajit, Hostile Witnesses- Not sufficient to earn acquittal, Criminal Law

Journal, Vol. III, July, 2008

6. Reports of the Law Commission of India available at lawcommissionofindia.nic.in

7. Rai Mahindra Nath, Hostility is Menace, Indian Journal of Criminology, Vol. IV,

2005

8. Lokur Madan B., J., Access to Justice:Witness Protection and Judicial

Administration, available at www.legalserviceindia.com

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