NATIONAL LAW INSTITUTE

UNIVERSITY,
BHOPAL

LAW OF EVIDENCE-I
8th Trimester
RETRACTED CONFESSION AND IT
JUDICIAL ANALYSIS

SUBMITTED TO: SUBMITTED BY:

Saubhagya Bhadkaria Lalit Ahake
Asst.Professor 2017BALLB117

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 ACKNOWLWDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide
Assit. Professor Saubhagya Bhadkaria for his exemplary guidance, monitoring and constant
encouragement throughout the course of this thesis. The blessing, help and guidance given by
his time to time shall carry me a long way in the journey of life on which I am about to
embark.
I am obliged to staff members of NLIU for the valuable information provided by them. I am
grateful for their cooperation during the period of my assignment.

LALIT AHAKE
2017BALLB117

TABLE OF CONTENTS

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ACKNOWLWDGEMENT........................................................................................................2

INTRODUCTION......................................................................................................................3

WHAT IS CONFESSION..........................................................................................................5

RETRACTED CONFESSION...................................................................................................6

MERE RETRACTION OF THE CONFESSION MAY NOT BE SUFFICIENT TO MAKE

CONFESSIONAL STATEMENT IRRELEVANT...................................................................8

CONDITION OF WITNESSES IN INDIA.............................................................................10

MAJOR INDIAN CASES:..................................................................................................10

CHANGES IN THE Cr.P.C. TO COUNTER THE PROBLEM.........................................12

EFFORTS OF THE LAW COMMISSION OF INDIA:......................................................12

CONCLUSION........................................................................................................................13

BIBLIOGRAPHY....................................................................................................................14

INTRODUCTION

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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.

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.

WHAT IS CONFESSION

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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.

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.

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
not voluntary in nature, and is caused by threat, inducement or any promise, then such
confession will be irrelevant in the criminal proceeding. 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.

RETRACTED CONFESSION

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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.

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, 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 Hon’ble 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.

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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. 

(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

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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.

RELATED JUDGEMENTS
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…
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
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.
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:

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:

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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:

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, 2008. But, so far
these amendments have proven to be ineffective in controlling this problem. These
amendments mainly relate to the 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:

The 14th Report (1958) examined the question of providing adequate facilities like travel
allowance and diet money to witnesses deposing in the Courts.

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The 37th Report (1967) examined the question of providing adequate protection to victim-
witnesses deposing in Sexual and other heinous cases.

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

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.

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.

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.

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.

(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.

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 BIBLIOGRAPHY

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

Justice, Criminal Law Journal, Vol. II, May, 2008
 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
 Mr. Kumar Sairam Sanath, The menace of hostile witnesses in Criminal Trials in
India- A closer look, Criminal Law Journal, Vol. III, July, 2006
 Pandey Brisketu Sharan, Hostile Witnesses in our Criminal Justice System, Criminal
Law Journal, Vol. II, 2005
 Dr. Atri Ajit, Hostile Witnesses- Not sufficient to earn acquittal, Criminal Law
Journal, Vol. III, July, 2008
 Reports of the Law Commission of India available at lawcommissionofindia.nic.in
 Rai Mahindra Nath, Hostility is Menace, Indian Journal of Criminology, Vol. IV,
2005
 Lokur Madan B., J., Access to Justice:Witness Protection and Judicial
Administration, available at www.legalserviceindia.com

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