NATIONAL LAW UNIVERSITY, JODHPUR

MID TERM PROJECT

EVIDENCE LAW

“Retraction of statement: Critique of the Voluntariness Test”

Submitted by Submitted to
Abhinav Mr Shashank Shekhar
(1755) Faculty of Law
Aradhya Dixit National Law University,
(1765) Jodhpur
 TABLE OF CONTENTS

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

SETTING THE CONTEXT: BRIEF DISCUSSION ON CONFESSIONS .............................. 3

Retracted Statements: A Form of Confession? .......................................................................... 4

The “Free and Voluntary” Test - Critical Analysis ................................................................... 9

CONCLUSION ........................................................................................................................ 11

BIBLIOGRAPHY .................................................................................................................... 11

2
INTRODUCTION

“A confession, if freely and voluntarily made, is evidence of the most satisfactory character.”
-Eyre C. B.
Confessional statements constitute an integral wheel in the wagon of Criminal jurisprudence,
the foundation of which rests on the notions of accuracy and truth. Ideally, statements falling
under this category add impetus and thereby play a decisive role in the determination of trials,
since they are essentially an acknowledgement of guilt or wrongdoing from the accused. In
Evidence Law, the categorization of confession has been done as per the place where it is given.
Consequently, the evolution of “judicial” and “extra-judicial” forms of confession. The place,
in turn, affects the ‘evidentiary value’ of these statements. As must be apparent, statements
made in front of authorities actually authorized to take evidence are valued more than those
made to private individuals, police authorities, etc. The evidentiary value of “retracted
statements” gains significance in this conversation, and forms the subject-matter of this project.
It is pertinent to note that the very bases of criminal law, accuracy and truth, fall on opposite
ends of the “objective-subjective” spectrum. While the connotation of ‘certainty’ is attached to
the term ‘accuracy’, the essence of ‘truth’ is that it differs from person to person, and from
situation to situation. It is in this context that the term “free and voluntary” shall be gauged in
respect of retracted statements.
One must note that the term “statements” is broader in its orientation and includes
“confessions”. In this light, the authors aim to discuss the aspect of retracted confessions and
the evidentiary value they hold in the court of law. While the main focus is on discerning the
same in the Indian context, how other jurisdictions deal with the subject matter has also been
deliberated upon. Finally, the traditional test of “free and voluntary statements” has been
critically analysed.

SETTING THE CONTEXT: BRIEF DISCUSSION ON CONFESSIONS

Confession is an acknowledgement of guilt or wrongdoing from the accused, and thereby plays
a decisive role in the adjudication process. However, the probative value of statements falling
within the ambit of this term differs, depending on where such statements are administered. In
order to answer questions regarding retracted statements – whether they come under the
purview of confession, and whether they have any evidentiary value in the eyes of law – it is
important to have a brief discussion on confessions.
• Confession: Basic Elements & Forms
Justice Stephan, in his Digest of the Law of Evidence, defines confession as “an admission
made at any time by a person charged with a crime stating or suggesting the inference that he
committed that crime.” In Pakala Narayana v. R.,1 the court held that "a confession is a
statement made by an accused which must either admit in terms the offence, or at any rate
substantially all the facts which constitute the offence." The basic elements of confessions that
may be discerned from these definitions are –

1
Pakala Narayana v. R., AIR 1939 PC 47.

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 a. Confessions can be made at any time (prior to the winding up of trial);
b. These statements shall be made by the accused; and
c. The material of such statements shall point towards the commission of that crime,
either directly or inferentially.
On the basis of the place, or authority, where confessions are administered, these statements
can be categorized into two sub-heads –
(i) Judicial confessions – These are the confessions recorded in the presence of a
magistrate or made in the court as prescribed by the law. Confessions made in courts
fall in this category. The evidentiary value of such confession is quite high.
(ii) Extra-Judicial confessions – A free and voluntary confession of guilt when done
during a conversation with any person other than a magistrate is termed as an extra-
judicial confession. Such confession lacks evidentiary value as against judicial
confession.
• Statutory Provisions in India
The Indian Evidence Act, 1872 (hereinafter, “IEA”) deals with the relevancy and admissibility
of confessions from Section 24 to Section 30. Further, the Code of Criminal Procedure deals
with the subject-matter under Section 164, 281 and 463.2 However, the term “confession” has
not been accorded a definition by these statutes. In addition, it should be emphasized that
confession is the subset of admission and they are not one and the same; the former goes into
criminal proceedings and the latter into civil proceedings. The relevant provisions of IEA have
been deliberated upon below.

RETRACTED STATEMENTS: A FORM OF CONFESSION?

The word “retraction” refers to the ‘action of drawing something back’.3 Within the legal
paradigm, retracted statements are ‘such statements made by an accused person before the trial
begins, by which they admit to having committed the offence, but which they repudiate at the
trial.’ Upon scrutinising this definition in the backdrop of the aforementioned basic constituents
of a confession mentioned above, it is evident that the former falls in the category of extra-
judicial confession.
A confession is said to be retracted only where the accused admits that he made the confession
and then denies the truth to what is stated therein. In India, the right to retract statements flows
from Article 20(3) of the Constitution of India,4 which provides immunity to the accused
against self-incrimination. The provision states that ‘No person accused of an offence shall be
compelled to be a witness against himself’, and is based on the legal maxim “nemo teneteur
prodre accussare seipsum”, which means “No man is obliged to be a witness against himself.”
Although IEA does not deal with retracted confessions directly, it does provide for a number
of situations in which confessions can be rendered irrelevant, and consequently inadmissible.
Such situations are provided for under Section 24 to Section 27, and include confessions made

2
Code of Criminal Procedure, §164.
3
Retraction, BLACK’S LAW DICTIONARY (12th ed. 2009).
4
INDIAN CONST. art. 20, cl. 3.

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on the pretext of inducement, threat, or promise, confessions made to police officers, and those
made in police custody. These provisions are premised on the notion that no one would accept
their fault unless provoked by their own ethics to reveal the truth. Thus, the “free and voluntary”
nature of confessions is the pivotal requirement for admissibility of the confession in evidence.
The same test is applicable for retracted confessions as well. In the case of State of Rajasthan
and Ors. v. Abdul Hameed and Ors.,5 it was held that “the first test that the court is required to
apply…is to ascertain whether the confession was 'voluntary' or not. Satisfaction of this test is
a sine qua non for admissibility of the confession in evidence.” In the same case, the court
provided clarity on the term “voluntary” when used in respect of confessions, stating that it
refers to a confession that is not caused by inducement, threat or promise. In deciding whether
an admission is voluntary, even the gentlest threats or slight inducements will taint a
confession.6
Law does not say that the accused has to prove that retraction of confession made by him was
because of threat, coercion, etc. but the requirement is that it may appear to the court as such.
Thus, 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. Rather, the burden rests on the prosecution to show that the confession is voluntary
in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely
for the purpose of securing a conviction.7
With regard to retracted confession the rules that appear to have obtained judicial recognition
and are spread over a large number of cases are –
(1) A confession is not to be regarded as involuntary or unlawfully induced merely because it
has been retracted at the trial. [In arriving at a conclusion, the court has to take into
consideration not only the reasons given for making the confession or retracting it, but all the
circumstances of the case].
(2) (a) As against the maker, a retracted confession may form the basis of conviction, if believed
to be true and voluntarily made.
(b) But the better point of view is that a retracted confession must be regarded with suspicion
and as a rule of practice and prudence it is unsafe to base a conviction on retracted confession
alone without independent corroboration. The use of such a confession is a matter of prudence
rather than of law.
(3) As against a co-accused, although a retracted confession may be taken into consideration,
the rule is now firmly established that its value against a co-accused is practically nil and that
it cannot form the basis of a conviction without substantial and independence corroboration
both as to the crime and the criminal.
(4) Far more corroboration would be demanded than the testimony of an accomplice on oath.

5
State of Rajasthan and Ors. v. Abdul Hameed and Ors., MANU/RH/0541/2019.
6
International Journal of Legal Developments and Allied Issues, Analysis of Various Aspects of Law Relating to
Confessions, THE LAW BRIGADE PUBLISHERS (Feb. 12, 2021), https://thelawbrigade.com/criminal-
law/analysis-of-various-aspect-of-law-relating-to-confessions/.
7
DRI v. Mahendra Kumar Singhal, 2016 (333) ELT (250) (Del.).

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 • Evidentiary Value of Retracted Confessions in India –
It shall be stressed that all confession should be used as a corroborative piece of evidence, thus,
confession cannot be considered as the sole basis for a conviction.8 This does not mean,
however, that the probative value of all confessions is the same.9 On the question of whether
or not retracted confessions can be made the sole basis for conviction of the accused, the courts
have expressed divergent opinions. While earlier decisions point in favour of such an approach,
provided the court believes them to be true, the sway in trend reflects the cautionary approach
that the judiciary has undertaken in this regard. This is because it is deemed unsafe to base the
conviction even of the maker on a retracted confession alone without some independent
corroboration.10
The need for such corroboration has been highlighted in several judgments. Courts have been
directed to be conscious and cognizant in matters of retraction about the manner in which it
was carried about as well as other surrounding factors. It was observed that a retracted
confession could be used as a corroborative piece of evidence but cannot form the sole basis
for returning a finding of guilt. Unless a retracted confession is corroborated in material
particulars it is not prudent to base a conviction in a criminal case on its strength alone, unless
judging from the reasons alleged or apparent, of retraction, there remains a high degree of
certainty that the confession, notwithstanding its having been resiled from, is genuine.11 Merely
because a statement is retracted does not mean that the said evidence was unlawfully obtained.
The court intending to act on such statements as being voluntarily made, is required to apply
its minds to its retraction and to reject the same for reasons to be set down in writing.12
As discussed above, several factors play a role in determining the veracity and relevance of
retracted statements. These include the voluntary nature of such statements, the truth of these
statements, the surrounding facts and circumstances that need to be corroborated with the
statement, etc. The judiciary has been consistent in its approach while determining the
probative value that is attached to these statements. In A. Tajudeen Vs. Union of India,13 it was
held that a statement when retracted loses its weight if it is retracted cannot be the sole basis of
confirmation of duty demand or the prosecution of the accused. In Manak Kala v. Union of
India & Anr.,14 the court held that confessions and statements which have been retracted have
little value unless they are corroborated by other material. Though the confessional statements
may be the starting point of investigations, in view of the other evidence available on record
and in the absence of the other evidence indicating clandestine removal, the same cannot be
made the sole basis for deciding against the accused.15
In Gopi Sarkar v. State of West Bengal, while dealing with the question of what value shall be
attached to retracted statements, deliberated on how the court shall proceed in such cases. It
held that -

8
Anushka Singh, Confession, LAW TIMES JOURNAL (2019).
9
Indian Evidence Act, §80.
10
Supra, note 7.
11
Supra, note 9.
12
K.T.M.S. Mohd. V. Union of India, (1992) 3 SCC 178.
13
A. Tajudeen Vs. Union of India,
14
Manak Kala v. Union of India & Anr.,
15
M/s. Tejwal Dyestuff Industries v. CCE, 2007 (216) E.L.T. 310 (Tri.-Ahmd.).

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“The proper way to approach a case of this kind is, first, to marshal the evidence against the
accused excluding the confession altogether from consideration and see whether, if it is
believed, a conviction could safely be based on it. If it is capable of belief independently of the
confession, then of course it is not necessary to call the confession in aid. But cases may arise
where the Judge is not prepared to act on the other evidence as it stands even though, if
believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in
aid the confession and use it to lend assurance to the other evidence and thus fortify himself in
believing what without the aid of the confession he would not be prepared to accept.”16
The reason for according such evidentiary value to retracted statements is not confined to the
aspects of relevancy and admissibility, but also includes the notion of ‘reliability’ that shall be
placed on such statements. Once it is shown that the maker of such statement has in fact resiled
from it, even if it is after a period of time, then it is no longer safe to rely upon it as a substantive
piece of evidence. Thus, it is the aspect of reliability that warrants a judicial authority to seek,
as a rule of prudence, some corroboration of such retracted statements by some other reliable
independent material.
• Value of Retracted Confessions in Foreign Jurisdictions

(i) Bangladesh
Sometimes the accused may retract his confession before the trial court. Then two questions
may be raised, i.e. whether the retracted confession is voluntary and if the answer to this
question is affirmative then the second question is can it be sole basis of conviction.17
The Evidence Act nowhere provides that if a confession is retracted it cannot be taken into
consideration against the co-accused or the confessing accused.18 In the case of Abdul Roul v
State,19 it was held that “if it is found that a confession is voluntary and true, conviction of the
maker himself can solely be based on the same; no matter whether it is retracted or not.” For
several years, this seemed to be the majority opinion in the court of Bangladesh.
However, another group of decisions emerged that provided that a retracted confession is very
weak and should not be acted upon.20 In State Vs. Ali Kibria,21 the Supreme Court of
Bangladesh held: “It is rule of prudence that a retracted confession needs corroboration in as
much as it is always open to suspicion and cannot be acted upon unless corroborated by
independent and credible evidence.”
Thus, it can be said that there is no direct rule forbidding conviction based on a retracted
confession if the court has sufficient reason to believe that the confession was true, just like in
the case of India. However, there is a school of thought that believes that retracted confession

16
Gopi Sarkar v. State of West Bengal
17
Sheikh Anisuzzaman, Shanjida Israt Jahan Efat, ADMISSIBILITY AND EVIDENTIARY VALUE OF
CONFESSION: CONFLICTS AND HARMONY BETWEEN RULES OF LAW AND RULES OF PRUDENCE
IN BANGLADESH, INDIA AND PAKISTAN, South East Asia Journal of Contemporary Business, Economics
and Law, Vol. 7, Issue 4 (Aug.) ISSN 2289-1560
18
Ram Prakash V. State of Punjab, AIR 1959 SC 1
19
Abdur Rouf vs. State, 1986 BLD 436
20
Supra note 20
21
State vs Ali Kibria 43 DLR 43 DLR 512

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cannot be the sole criteria for conviction and should only be relied upon when corroborative
evidence is present.
(ii) Singapore
The law in Singapore stipulates that an accused person who has pleaded guilty can change his
mind during mitigation without having to give valid and sufficient reasons for doing an about-
turn, as long as the court is satisfied that there is no abuse of process.22 As a starting point, it is
important to bear in mind that there are many reasons other than unreliability that makes an
accused person retract his confession.23 However, the court decides whether or not there is
good reason to believe that the previous confession was false or admitted to under pressure.
The retraction is only allowed if the court is satisfied of the same and the jury is left to decide
what it believes to be the true.24
Thus, an accused can retract his statement but the court can still rely on it if it feels that the
original statement was true. In fact, it is not necessary for a retracted confession to be
corroborated before it can be relied upon.25 This implies that the accused has an evidential
burden to prove that his previous statement must not be relied upon.26
(iii) USA
In a case in the United States, many found it incredulous when it was revealed that a grandfather
would remain in prison for sexually abusing his granddaughter, despite the granddaughter
submitting a signed statement to court explaining that her original allegations against him were
untrue.27 The conviction of the grandfather depended entirely on his granddaughter’s account
of the sexual assaults she suffered.28 There was a lot of criticism regarding the decision of the
court to base the conviction on a retracted statement. However, it is important to note that
according to expert psychologists29, children who have been victim of sexual harassment are
likely to recant their statements once they realise the consequences of their actions. They may
feel uncomfortable regarding the legal process or guilty for the punishment of the accuse, when
the accused is a part of the family. Therefore, it is not prudent to disregard the previous
statement completely unless there is sufficient reason to believe that the original statement was
false.
Hence, even if a person retracts the statement, the court is not bound by it. The court may or
may not consider the retraction as genuine. In case the court is convinced that the retraction
has been made under pressure, the court can discount the retraction and convict on the basis of
the original statement.

22
Accused person can retract guilty plea at mitigation stage without giving reasons, The Strait Times, Singapore
23
Yusof bin A Samad v Public Prosecutor. [2000] SGHC 181. Case Number. : MA 341/1999
24
Public Prosecutor v Dinesh s/o Rajantheran [2019] SGCA 27
25
Ismail bin UK Abdul Rahman v PP SLR 232 [1974] 2 MLJ 180 ; Mohamed Bachu Miah & Anor v PP [1993]
1 SLR 249
26
Chin Tet Yung, Confessions and statements by accused revisited, Singapore Academy of Law Journal,
(2012) 24 SAcLJ
27
Maia Cohen - Lask, Why is telling the court you lied not enough to overturn a conviction?, Corker Binning,
May 11, 2019
28
Ibid
29
Johnson v State, 732 S.W.2d 817 (1987), Supreme court of Arkansas

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THE “FREE AND VOLUNTARY” TEST - CRITICAL ANALYSIS

The evidentiary value of retracted confessions in several jurisdictions depends on whether they
were administered voluntarily in the first place or not. This practice has given rise to the “free
and voluntary” test. The test is ingrained in Section 24 of IEA which provides that a statement
or confession is inadmissible if –
“…the making of the confession appears to the Court to have been caused by any inducement,
threat or promise having reference to the charge against the accused person, proceeding from
a person in authority and sufficient, in the opinion of the Court, to give the accused person
grounds which would appear to him reasonable for supposing that by making it he would gain
any advantage or avoid any evil of a temporal nature in reference to the proceedings against
him.”30
The voluntary test has been derived from principles established under English Law which
provide that statements made by an accused are not deemed inadmissible unless proven to be
involuntarily made. Additionally, Article 20(3) of the Indian Constitution provides immunity
against self-incrimination to the accused. Evident from the aforementioned discussion, courts
in India apply the same test in order to adjudge the admissibility of retracted confessions.
While the “voluntary test” does focus on promoting safeguards in favour of the accused, the
authors believe that it suffers from some inherent flaws. These have been discussed below.
• Criticisms of the voluntary test –
The criticism of this test is based on two major grounds – first, the difficulties inherent in
applying the “objective” and “subjective” parts of the test; and second, problems arising as a
result of ambiguity in the policy basis of the test i.e., balancing between individual interests
and judicial sanctity.
a. Problems caused by the “Objective-Subjective” elements of the test –
The Criminal Law jurisprudence rests on the foundations of two key elements – the notions of
accuracy and truth. As mentioned above, these notions lie on the opposite ends of the
“Objective-Subjective” spectrum, since the terms “accuracy” and “certainty” go hand in hand,
while every individual has their own versions of “truth” in every situation.
It is because of this stark differentiation between notions that are ideally required to form the
bases of criminal law, that problems arise in applying the “voluntary test”. This is because
when courts attempt to construe the “voluntary and free” nature of retracted statements, the
situation is broken into two parts – (a) “was there an inducement, threat or promise professed
by the person in authority”; and (b) “whether such inducement, threat or promise operate on
the mind of the accused so as to cause him to make a statement”. Clearly, determination of (a)
is an objective consideration, and depends on the actions of the person in authority in a
particular case, while (b) shall be decided subjectively, with reference to the accused’s mental
state.
The authors believe that the approach of determination of whether or not any inducement, threat
or promise was professed by the person in authority without taking into consideration the

30
Indian Evidence Act, §24.

9
impact of such actions on the accused’s state of mind is criminal, and defeats the whole purpose
of the test. Upon doing so, one completely negates the subjective element of causation i.e.,
whether what was said or done by a person in authority caused the accused to make a statement
or caused his will to be overborne. Thus, the subjective element of this test shall be given
precedence over the objective element. To substantiate this argument, the authors place reliance
on Lord Hailsham’s view in DDP v. Ping Lin, wherein he correctly held that –
“The question to be answered in every case is whether the prosecution has proved the statement
in question to be voluntary in the sense of not being obtained as a matter of fact by fear of
prejudice or hope of advantage excited or held out by a person in authority.”
However, courts have on several occasions completely neglected this aspect, stating that even
the most gentle threats or slight inducements will taint a confession.
In The Concept of Voluntariness in the Law of Confessions, Dorcas Quek pointed out that the
objective limb “entails the consideration of whether the circumstances are such that it would
give the accused reasonable grounds to suppose that he would gain an advantage or avoid an
evil.” As per this interpretation, if the judge believes that the inducement, threat or promise
thus caused does not have enough substance to constitute a ‘reasonable ground’ for retracting
one’s confession, the subjective element would never come into play. This has the effect of
completely negating the aspect of truth from the notion of “free and voluntary”.
b. Lack of definition regarding important elements of the test –
The difficulties with the voluntary test partly lies in the inability of the Statutes to provide
proper definitions of important element related to the test. For instance, a “person in authority”
has not been defined in any certain manner, thereby creating a pandora’s box in terms of who
actually possesses the requisite authority to induce, threaten or promise in an attempt to
influence an accused’s definition. Consequently, the responsibility to provide for such
definitions have been rested upon the courts. This has resulted in various interpretations
regarding the same matter, creating a lot of conflict and confusion in the process.
One such confusion pertains to situations in which for whatever reason, the accused did not
believe that the person offering an inducement, threat or promise is a ‘person in authority’ even
though the latter may be one within the description. While a confession given to such a person
would satisfy the reliability principle, but an argument may arise with regard to the objective
element of this test i.e., would the confession become inadmissible as it was given in response
to an inducement, threat or promise held out by a person in authority.
c. Ambiguity in the policy basis of the test –
A pertinent question that arises in the application of the voluntary test is the policy
considerations upon which the test has been based. These considerations are – whether the test
is based on reliability of evidence, or other aims such as protecting the rights of accused
persons, judicial integrity or disciplining the law enforcement agencies. Thus, the long-
standing debate of whether individual rights shall be given precedence over public interests is
also attached to the voluntary test. The situation becomes even more dicey in case the test aims
to encapsulate the notions of both private and public interests. Such situations give rise to
conflicts, the solution to which would only fuel further contradictions and controversy. For
instance, if a statement otherwise reliable is obtained through unlawful means, what is the

10
resolution of such conflicts? There has been no clarity on the same. This is apparent from the
aforementioned dialogue on the issue. Although the retraction of statements is a fundamental
right accorded to the accused in India, the courts tread cautiously in such circumstances so as
to maintain the judicial decorum.

CONCLUSION

Retracted statements do hold value in the eyes of law, albeit lighter than confessions directly
made before the courts. The manner in which they are administered in the first place determines
the probative value that they possess. That is, if the statements are made voluntarily, in the
absence of undue influence or coercion, such statements, even if retracted would continue to
hold value. This may be contrasted with statements which are given involuntarily, as a
consequence of threats. Statements of the latter kind would obviously not play a vital role in
the adjudication process, since their probative value would be negligible.
It is important for the courts to not view retracted confessions and their retracting accused with
suspicion. Rather, it shall tread with caution in order to determine whether such statements can
be used in a manner complementary to their decision. In pursuance of this, the courts have
adopted the “voluntary test”, in order to adjudge and determine which statements can be taken
into consideration and which shall be totally discarded. Although the test has its own inherent
flaws, it does serve to protect the interests of the accused, namely, the right against self-
incrimination. While the authors are sceptical of the durability of this test, especially the lack
of amendments that it has undergone over the years, its foundations cannot be brought into
question.

BIBLIOGRAPHY

Articles

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1. Paula A. Bernhard and Rowland S. Miller, Juror perceptions of false confessions
versus witness recantations, Psychiatry, psychology and law. Published online 2018
May 23, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6818423/.
2. Russell D. Covey, Recantations and the perjury sword, Albany Law Review(Vol. 79,
Issue3),
https://go.gale.com/ps/anonymous?id=GALE%7CA486308870&sid=googleScholar&
v=2.1&it=r&linkaccess=abs&issn=00024678&p=AONE&sw=w
3. Richard A. Leo, False Confessions: Causes, Consequences, and Implications, Journal
of the American Academy of Psychiatry and the Law Online September 2009, 37 (3)
332-343; http://jaapl.org/content/37/3/332

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