SYMBIOSIS LAW SCHOOL

PUNE

LAW OF EVIDENCE

INTERNAL ASSESSMENT II:

RETRACTED CONFESSIONS

Submitted by:

VISHESH BARJEEV TYAGI

2nd Year LL.B.

PRN: 19010122094
1) Confessions made in Police Custody and then retracted.
The word confession has been defined in different ways in the sense of contemporary criminal
justice. Confession is something that is undertaken by a person who is charged with some
criminal crime, and the comments made by him indicate an inference as to the facts at issue or
as to the facts at issue. Statements may imply some basis for concluding or implying that he is
guilty of a crime. We may also define a confession, in other words, that the admission of the
accused in the criminal proceedings is a confession.

Confession Given in Police Custody.

The word custody is used in a broad sense. The custody of a police officer for the purposes of
section 26 of the Evidence Act is not mere physical custody. A person may be in the custody
of a police officer, while the other person may not be physically in the possession of a person
who has made a confession. There have to be two things in order to constitute custody.

In the first place, some control must be imposed on the movement of the confessional, he may
not be at liberty to go any way he likes, and in the second place, such control must be imposed
indirectly by some police officer. The crucial test is whether at a time when a person makes a
confession that he is a free man or a hidden movement, the police are controlled by themselves
or by some other agency employed by them for the purpose of securing such a confession.

The word custody in this section does not mean formal custody, but includes a condition in
which the accused may be said to have been in the possession of a police officer or to have
been said to have been subject to some kind of surveillance or restriction.

Section 25 of the Indian Proof Act provides that no confession made to a police officer shall
be established against a person accused of any offence.

If confessions to the police were allowed to be proven in evidence the police might torture the
accused and force him to confess to a crime that he may not have committed. A confession thus
obtained would naturally be unreliable. It wouldn't have been voluntary. Such a confession
would be meaningless, whatever its type may be, whether overt, express, implied or inferred
from actions. The reasons why this policy was adopted when the Act was adopted in 1872 are
probably still true.

The mere presence of a police officer should have no effect whatsoever. Where confession is
offered to someone else and the police officer is just casually present and overhears it would
not break the voluntary essence of the confession. But if that person is a secret agent of the
police who has been deputed for the very purpose of receiving a confession, he or she will
suffer from a crime of confession to the police.

In the case of Dagdu v. Maharashtra State 1, Supreme Court noted that: The archaic effort to
extract confessions by crook or crook appears to be the end and end of the police investigation.
The police should note that confession might not always be a shortcut to a solution. Instead of
trying to initiate a confession, they should try to get to it. Else, when they're busy on their short
road to success, good evidence can disappear due to lack of attention to real clues. If a
confession has been made, there is always an indication of zeal for the full and by means of an
inquiry, in order to create the case de hors confession, which is later inadmissible for one cause
or another the case is unfounded in the court.

It was in R. v. Lester2, the accused was taken by a police officer in Tonga. In the absence of
the constable, the accused admitted to the Tonga-driver that he had committed the offence. The
confession was kept in police custody, since the accused was in the custody of the constable,
and there was no distinction in his temporary absence. When a woman accused of murdering
her husband was taken into custody by the police, she was accompanied by a friend of the
woman. The cop left the woman with her friend and went to get a fresh horse. The woman
admitted her guilt to her friend while the cop was gone. Confession would not be admissible
against the accused as an inmate should be considered in police custody, despite the fact that
he had been missing for a brief period of time.

In R v. Murugan Ramasay 3, the police authority is intimidating those who are unexpectedly
brought under its shadow, and the law acknowledges and provides for the danger of such people
making incriminating confessions with the intention of placating authority and without regard
to the reality of what they are saying.

Retracted Confessions.

Retracted confession is a confession made by an individual on a voluntary basis and

subsequently withdrawn. The legitimacy of such a confession is a matter to be determined by
the court on the basis of the facts and circumstances of each case and if the court is of the
opinion that such a confession is established; the court is bound to act on it in such a way that

1
A.I.R. 1977, S.C. 1579
2
[2008] QCA 254
3
(1964) 64 C.N.L.R. 265 (P.C.) at 268
the person making the confession is concerned. Retracted confession can also form the basis
for prosecution and punishment if it is presumed to be valid.

In Retracted Confession, the person making the confession can be used if it is backed by
independent and corroborative evidence. In the case of Pyare Lal v. State of Rajasthan4, the
Supreme Court held that a retracted form of confession could form the basis of a conviction if
and only if the Court is satisfied that it was valid and that it was made on a voluntary basis.

2) Confessions made with Police then recorded with Magistrate retracted.

Judicial confessions are declarations rendered before a magistrate's office or before a court of
law during any criminal proceedings.

Judicial confession is valid and is used as evidence against the author, provided that it is
documented in compliance with the provisions of Section 164 of the Cr.P.C. The magistrate
who registers a confession under Section 164 must alert the accused who is about to agree that
he or she may or may not be admitted as an assent. After warning the accused, he must allow
time to think about the matter and only record the confession.

The purpose of Section 164 of the Criminal Procedure Code is to provide a means of ensuring
a credible record of statements or confessions made during the police investigation which may
be used if necessary, during the investigation or trial.

Under Section 25 of the Indian Evidence Act, a confession to a police officer is inadmissible
in evidence and thus if a convicted person confesses during a police investigation, it is
sometimes reported by a police officer under Section 164 of the Criminal Procedure Code and
may then be used to the degree that it is admissible under the Indian Evidence Act.

The confessional of the accused before the judge is good evidence and the accused is convicted
on the basis of it. It is clear that a confession may be used against the creator of it and is
necessary in itself to justify his conviction.

If it is found that the confession had been made and that it was free, voluntary and real, nothing
would remain to be done by the prosecution to obtain the conviction. When the court
determines that it is true that the accused committed the crime, it means that the accused is

4
AIR 1963 SC 1094
guilty and that the court must do nothing but record the conviction and punishment. There is
no question of corroboration in this situation.

Normally, it would not be very secure, as a matter of prudence, if it were not permissible to
base a conviction for murder on a confession of the suspected murder on its own and without
more. It would be extremely dangerous to do so if the confession were subject to a great deal
of ridicule and had been taken to prison for no adequate cause, and if the murder storey, as
described in the confession, was very difficult to believe.

The statement was made by the Supreme Court and hence, in the case of a judicial confession,
it cannot be said to be a good rule. Now the settled law is that a conviction can be based on
confession only if it is proven to be voluntary and valid. If corroboration is required, it is
sufficient that the general pattern of confession is confirmed by some evidence which would
be consistent with the substance of the confession. General corroboration is necessary.

In Palvinder Kaur v State of Punjab5, The Supreme Court accepted the decision of the Privy
Council in the case of Pakala Narayan Swami on two counts. In the first place, the meaning, if
confession is that it must either admit guilt in terms or admit substantially all the facts that
constitute the offence. Second, a mixed argument that even though it includes a confessional
statement, would still lead to acquittal, is not a confession.

In Nishi Kant Jha v State of Bihar6, The Supreme Court noted that there was nothing wrong
with or relying on, part of the confessional declaration and denying the remainder, and for that
reason the Court drew the help of the English authorities. Where sufficient evidence exists to
refute the exculpatory part of the statements made by the accused, the Court can rely on the
indictable part.

3) Analysis of the Afsal Guru Case.

Afzal Guru was one of the key persons who were responsible for the attack on the Parliament
in December 2001 who had confessed his crime while he was in police custody which was later
used as an evidence by the court while delivering the judgement.

5
MANU/SC/0038/1952
6
[1969] 2 SCR 1033
Although the Supreme Court did not give much attention to the confession, the judgement
draws focus to an extremely sensitive issue with regards to the confession in custody and then
retracted by the accused himself.

This was owing to the fact that Afzal Guru himself expressed his wish to confess his crime
because of which he was transferred to DCP Special Cell.

The police gave this statement that the accused was doing this out of no pressure or threat and
proper procedures had been followed by them.

In fact, when police produced him before the Additional Chief Metropolitan Magistrate in
Delhi, he admitted that he made the confession voluntarily and without any pressure or threat.

However, he later retracted his confession and by that time the Supreme Court raised concerns
with regards to the police authorities when they arranged a media interview before the
recording of the actual confession.

After the confession was retracted by him, the Supreme Court denied admission of the
confession of Afzal Guru as evidence and held that there was no reason for the terrorist to admit
his crime.

Afzal Guru did not know about the content of confession when he was produced before
magistrate resulting to delay in the retraction of confession.

It can be inferred that it is determined to relinquish the confession of Afzal guru on the similar
grounds which was laid down by the apex court while delivering the judgement of State v.
Navjot Sandhu7, where it was held that that a confession which has been retracted can be taken
into consideration because the court would look for the reason behind the confession which
was made by the accused or the reason behind the retraction of the confession.

It is pertinent to mention that the Supreme Court abrogated the confession by analysing the
content of what the accused stated when he was repudiating his own statement rather than
forming a case based on discrepancies in the defensive plea and arguing that the retraction did
not corroborate the rest of the facts.

Retracted confessions often tend to comprise the legal foundation for a conviction, the value
of confessions which has been repudiated as an evidence is much lower. If the judiciary
examines the reasons behind the confession followed by its retraction of, that confession cannot

7
(2005) 11 SCC 600
be considered as a ground for the conviction which eventually resulted to the person being
hanged.

Confessions have always held a strong evidentiary value against any person, however, if
retracted, it loses value and would leave the question on the authenticity and credibility of that
confession. It is necessary to acknowledge that it has been witnessed that many prisoners either
are unable to put objection to the false statements or consider it to be meaningless. This could
have led in delay in retraction of confession especially in the case of Afzal Guru.

If the accused took time to repudiate his confession or there were discrepancies in the resulting
repudiation, it is not possible for the court to consider that the confession has been made
willingly or without any pressure and convict that accused.

It is also necessary to state that the test which has been used to ascertain the credibility of a
repudiated confession is obscure which is why it cannot be considered as the only ground for
the conviction.

4) Discuss difference between Afsal Guru and Kasab Case interpretation.

Afzal Guru Case.

Upon analysis of the Afzal Guru case, it is observed that the accused persons had given their
willingness to confess to the police initially. Hence the ACP had presented the accused persons
before the DCP. The DCP had given the accused persons the warning that their confession
could be used as evidence against them. After they received the warning, Gilani refused to give
his confession however, Afzal Guru and Shaukat agreed to give their confession. Hence, the
accused persons were presented before the the magistrate in order to record the confession.

Under Section 32 (4) of the Prevention of Terrorism Act, the accused persons are to be
presented before the magistrate within 48 hours of getting the confession recorded with the
police along with the confessional statement.

When the accused persons were presented before the magistrate, the magistrate asked them
whether the confession given by them was voluntary and not under coercion to which the
accused persons gave a positive response stating that it their confession was voluntary.

After recording their confessions, the magistrate had remanded Shaukat and Gilani to judicial
custody while Afzal Guru was remanded to police custody for further investigation which was
a clear violation of safeguard procedure
Immediately after recording the confessions with the magistrate, Shaukat had retracted his
confession on the grounds that his words what twisted and wrongfully represented in in the
confession. On the other hand, Afzal Guru took 7 months in retracting his confession on similar
grounds.

It is for this reason that the Supreme Court did not consider the confession given by Afzal Guru
to be a valid piece of evidence stating that it was in violation of the safeguard procedures as
mentioned under section 52 two of the Prevention of Terrorism Act.

Amir Ajmal Kasab case.

In the case of Amir Ajmal Kasab, he had similarly expressed his willingness to provide
confession and was accordingly brought before the magistrate in order to get his confession
recorded. The magistrate had asked Amir him whether he voluntarily wanted to give his
confession and that it could be used as evidence against him. Amir Ajmal Kasab replied
positively and his confession was accordingly recorded by the magistrate as per the procedures
laid down.

The magistrate had also specifically asked Amir Ajmal Kasab weather the police had forcefully
compelled him to give his evidence to which Kasab replied positively and said that his
confession was voluntary. The magistrate had then given him 2 days of time to reconsider
whether he wants to give the confession or not. Amir Ajmal Kasab, after 2 days, willingly
recorded his confession before the magistrate after which the magistrate remanded him to
judicial custody

However, after 2 months when his confession was presented to the trial court as evidence by
the prosecutors, the council representing Amir Ajmal Kasab contended that he was forced by
the police to give his confession to the magistrate and hence it was not given willingly. To add
on it was also contended that his signatures on the confession statement it was taken by force.

However, when the issue of whether his confession was taken forcefully was brought before
the Supreme Court, it was held that his confession was voluntary and was not a result of
coercion by the police or the magistrate. Hence his confession could be admitted as evidence
against him for the atrocities committed by him in Mumbai.

Conclusion
It is pertinent to note that the magistrate had played vastly opposing roles in the Afzal Guru
case and the Amir Ajmal Kasab case. Where in the Amir Ajmal Kasab case the magistrate had
followed you procedure in order to record the confession statement of Amir Ajmal Kasab
which was accordingly upheld by the supreme court and the validity of its authenticity could
not be challenged. On the other hand the magistrate in the case of Afzal Gurus confession
statement it had made severe and Critical procedural errors and did not give regard to follow
due process because of which the supreme court held that the confession was not valid. In
conclusion it is observed that it is highly necessary for the magistrate to follow due process
while recording and confession of an accused person in order to make it authentic and it could
be used as a viable piece of evidence

5) discuss evidentiary value of Retracted confession and opinion as to

whether retracted confession need or do not be dumped or accepted by the
Apex Court.
The convicted person who confessed earlier and then refused the confession would not kill the
evidentiary value of the confession as originally reported. The Supreme Court has held that a
Retracted Confession can form the basis of a conviction if it receives some general
corroboration from other independent evidence. But if the court determines that the confession
originally reported was voluntary, it should take action.

If during the inquiry, the accused is able to admit the guilt of having been investigated by the
police officer, the police officer shall give the accused to a magistrate for recording his
testimony.

The magistrate, having been assured that the accused acknowledges in his testimony that he
has committed the offence, can prove that this statement has been reported by the magistrate at
the hearing. As the trial starts, the accused is asked if he has committed the crime and may say
that he has not committed the crime.

The question could be raised again as to whether he made a declaration to the magistrate during
the investigation of the confession of guilt. He may deny that he made a statement at all, or he
may say that he made that statement because of the police's undue influence. In this case, a
statement made by the accused to the magistrate prior to the start of the trial is considered a
retracted confession.
It is dangerous to base the conviction on a retracted confession unless it is corroborated by
credible evidence. There is no definite law that a retracted confession cannot be the foundation
of a conviction, but it has been founded as a rule of practise and prudence not to rely on a
retracted confession until it has been corroborated.

Courts have convicted individuals on retracted confession because they were of the opinion
that the confession when it was made was voluntary or compatible and valid, but that the true
rule of law on retracted confession is as follows.

If a retracted confession is the only proof, it may be of little value especially if it is madee
during a competition for pardon, which sometimes occurs when a number of persons are
suspected of having committed an offence.

It is most much the case when a number of individuals are convicted of murder or slander or
of some other crime. The person in charge of the investigation, which is focused on clear and
independent evidence, prefers some of the accused to confess guilt on the condition that he will
be a witness in the case.

In the case of Maharashtra v. Mohd. Oh, Ajmal Mohd. 8 Amir Kasab, the courts have held that
it is safe to rely on withdrawn confessions if it can be proven that the confession is valid and
has been made on a voluntary basis. It is also necessary to bear in mind that the confession has
been properly corroborated. The courts have the right to ignore the exculpatory evidence and
to consider the indictable facts.

In Ram Prakash v. The State of Punjab9, Where more than one person is tried jointly for the
same crime, a confession made by either of his co-accused can be taken into consideration by
the court not only against the co-accused, but also against the co-accused. The Evidence Act
does not provide that if a confession is withheld, it cannot be taken into account against the co-
accused or the accused confession.

In Manjit Singh vs. CBI10, Considering the issue whether the co-retracted accused's
confessions could be relied upon to convict the accused; the Court held that the retracted
statements could be used against the accused as well as against the co-accused, given that such
statements should be genuine and voluntary.

8
(2012) 9 SCC 1
9
AIR 1959 SC 1
10
(2011) 11 SCC 578.
In Taj Mohammad Khan v. State of Karnataka 11, it was held that, since confession is expected
to be simple, precise and unmistakable, its retraction should also not be ambiguous, vague or
imaginary. The person claiming withdrawal of the confession or his earlier indictment would
satisfy the court that he had withdrawn from his declaration as soon as possible.

11
1998 CrLJ 2312 (Kant)