The Concept of Retracted Confession has been derived by the definition of Mr.
Justice Stephen in his digest of Law of Evidence and obtains no definite
meaning. Confession has been mentioned in the Indian Evidence Act for the very
first time under Section 24 of the Indian Evidence Act, 1872.
This led to the
evolution of the concept of retracted confession keeping in mind the rights of
the accused that has mainly been derived from Article 20(3) of the Constitution
of India. This has led the courts to question the reliability of such a
confession and the intention behind the accused who is making such a confession.
This paper seeks to understand the various circumstances under which the
confession is relied upon for the purpose of passing the order of conviction.
Lastly, in the Light of the Ajmal Kasab case, the author seeks to identify the
various principles in terms of the evidentiary value of the retracted
The Law in India had been codified in the second half of the nineteenth century.
Prior to the same, the people in the presidency towns and various other states
were strictly governed by the local laws along with the various courts
established by the Royal Charter selectively introducing certain principles of
the English Law.
Between the years of 1835 and 1853, various Acts had been
passed by the Indian Legislature thereby introducing various reforms in the
Context of India Evidence Act. The first uniform legislation for the Indian
Evidence Act had been drafted by the Law Commission of India in the year of
1868. This bill was subsequently dropped as it felt that it was not sufficient
in terms of ensuring that the pre-supposed knowledge of the various principles
of the English Rules.
The complete exclusion of the custodial confessions from the evidence along with
the various cases in confession that are leading to the discovery of any fact
that was carried in the present Act with the various sections that deal with the
confession (Sections 24, 25, 26, 27, 28, 29, 30 of the Indian Evidence Act,1872
and Sections 161 and 164 of the Code of Criminal Procedure, 1973) has been
successfully carried forward. The Act had been laid down with the purpose of
establishing rules relating to the evidence.
The term confession has not been defined in the Indian Evidence Act, 1872 and it
attains its first appearance in section 24 of the Indian Evidence Act. Mr.
Justice Stephen defined the term confession as an admission made at any time and
by a person who is charged with a crime. Thus, the accused will amount to making
a confession if it fulfills the following requirements; a) Explicit admission of
guilt or b) inference as to guilt can be drawn from the statements made by the
Confession is of two kinds namely:
a) Judicial Confession and
Judicial Confession is that which is made before a Magistrate or in
Court in the due course of legal proceeding whereas Extra Judicial Confession is
made anywhere by the accused than before the Magistrate. In a case the
Supreme Court held that an extra judicial confession can be relied upon only if
it stands clear and consistent.
Whereas in the case of Balwinder Singh v.
State the Supreme Court held that in the case of an extra-judicial
confession, the credibility of the person making such a confession is tested and
the courts will have to see whether the person making such a statement is
trustworthy or no.
A retracted confession is a confession voluntarily made by a person and
subsequently retracted. The credibility of such a confession is a matter to be
decided by the court according to the facts and circumstances of each case and
if the court is of the opinion that such confession is proved; the court is
bound to act upon it so for as the person making the confession is concerned.
The retracted confession may also form the basis of conviction and punishment if
it is believed to be true and voluntary.
Retracted confession can be used
against the person making it if it is supported by independent and corroborative
evidence. In the case of Pyare Lal v. State of Rajasthan the Supreme Court
held that a retracted form of confession can form the basis of a conviction if
and only if the Court is satisfied that it was true and was made voluntarily.
Section 24 made all the confessions made by an accused under any form of
inducement by the means of either threat or promise from any person as
irrelevant in any criminal proceeding. It was held in a case that if the
circumstances are such that the Courts believe the witness and is satisfied that
such a confession is made on a voluntary basis, an order of conviction can be
founded on the same.
The conditions of irrelevancy under section 24 of Indian Evidence Act,
1872 are as follows:
a) The confession must be a result of inducement or a threat or a promise;
b) Inducement, etc. should proceed from a person in authority;
c) It should be relating to the charge that is in question;
d) It should obtain a worldly benefit or any form of disadvantage
The Confession must be a result of inducement or threat or a promise
A confession will justly be admitted if and only if it is voluntary and any
confession that is obtained by the means of a threat, promise or inducement
cannot be admitted. An inducement to confess may be upon a promise of pardon.
A promise or threat made to one accused will not render a confession made by
another, who was present and heard the inducement, irrelevant.
Person in authority
The particular inducement or threat caused must flow from a person who has
authority. This refers the government officials who are having a particular
authority due to their position in the services. Every government official is
the person who is capable of influencing the course of prosecution.
v. Navroji Dadabhai
,W, a traveling auditor within the services of the G.I.P.
Railway Co., having discovered defalcations within the accounts of the
defendant, who was a booking clerk of the Company, went to him and told him
that, he had better pay the money than go to jail
, and added that it would
be better for him to tell the truth
, after which the accused was brought before
the Traffic Manager in whose presence he signed a receipt for, and admitted
having received a certain sum. The accused was subsequently put on his trial for
criminal breach of trust. It was held that the words used by W, constituted an
inducement to the accused to confess, and that W was a ‘person in authority’
and, therefore, the evidence was inadmissible.
The Inducement, threat or promise should be in reference to charge
Thirdly, the inducement, threat or promise should be in reference to the charge
in question. This specifically so stated in the section itself which says that
the inducement, threat or promise must have reference to the charge against the
Thus, it is necessary for the confession to be exclude from
evidence that the accused should labour under influence that in reference to the
charge in question his position would be better or worse according as he
confesses or not. Inducements in reference to other offences or matters or
offences committed by others will not affect the validity of the confession.
Thus, where a person charged with murder, was made to confess to a Panchayat
which threatened his removal from the caste for life, the confession was held to
be relevant, for the threat had nothing to do with the charge.
Cause Disadvantage of any form
The last condition for Section 24 to come into play is that the inducement,
threat or promise must be such as is sufficient, in the opinion of the Court, to
give the accused person grounds, which would appear to him reasonable, for
supposing that by making the confession he would gain any advantage or avoid any
evil of a temporal nature in reference to the proceedings against him. Thus, the
evil which is threatened to him or the benefit which is promised to him must be
of material, worldly or temporal nature.
Section 25 of the Indian Evidence Act, 1872
makes irrelevant all the confessions
made to a police officer as irrelevant. This is to ensure that no torture is
induced upon the accused by the police officer. Under this Section a confession
made to a police officer is inadmissible in evidence except so far as provided
by Section 27 of the Indian Evidence Act, 1872. Generally speaking, that the
principle upon which the rejection of confession made by an accused to a police
officer or while in the custody of such officer is founded is that a confession
thus made or obtained is untrustworthy.
The broad ground for not admitting
confessions made to a police officer is to avoid the danger of admitting a false
confession. The only exception will be in case of Section 15 of Terrorist
and Disruptive Activities (Prevention) Act.
This has now been replaced by The
Prevention of Terrorism Act. Thus, confessions made before the police under this
can be used against the accused.
deals with the confession by the accused while in custody of the
police is not required to be proved against him. It provides for the fact that
no confession made by any person whilst in the custody of a police officer,
unless made before the magistrate and shall be proved against such a person.
Section recognizes one exception. If the accused confesses while in police
custody but in the immediate presence of a Magistrate, the confession will be
valid. The presence of a Magistrate rules out the possibility of torture thereby
making the confession free, voluntary and reliable. In the case of Zwing Lee
Ariel v. State of M.P.it has been held that immediate presence of the
means his presence in the same room where the confession is being
recorded. His presence in the adjoining room cannot afford the same degree of
protection against torture.
deals with the amount of information obtained from the accused that
is required to be proved. It provides that when any fact is deposed to as
discovered as a consequence of the information received by the accused under
police custody and is distinctly related to the facts of the case may be
is an exception to the rules laid down in Section 25 &
because this section makes a confession relevant even if it is made to a
police officer in police custody. But the condition is that the confession made
has led to the discovery of some facts and that too proves that part only which
can be proved by the facts discovered.
The essentials of Section 27 are as follows:
a) The facts deposed must be discovered as a consequence of information;
b) Information must be received from the person who is accused of an
c) The accused must be in police custody;
d) Such information should distinctly relate itself to the facts
deals with the confession made after removal of impression caused by
inducement, threat or promise, relevant. It provides that if such a confession
as is referred to in Section 24 is made after the impression caused by any such
inducement, threat or promise has, in the opinion of the Court, been fully
removed, it is relevant. In the case of Abdul Razak v. State of
Maharashtra, it was held that confession made after removal of impression
caused by inducement, threat or promise is relevant under Section 28 of the
Indian Evidence Act, 1872.
deals with the confessions that are otherwise relevant not to become
relevant due to promise of secrecy and etc.
A confession is made relevant even it is obtained in the following circumstances:
a) On promising the accused that the information obtained will be kept a
secret or that it will not be used against him
It may be recalled that an admission made in a civil case under promise that
evidence of it shall not be given is not relevant, (Section 23) the policy being
that litigants should be encouraged to compromise their differences. That policy
has no relevance to criminal cases because here the public interest lies in
prosecuting criminals and not compromising with them. Consequently, therefore,
where an accused person is persuaded to confess by assuring him of the secrecy
of his statements, the confession is nevertheless relevant.
b) By practicing a deception on the accused for the purpose of obtaining his
When the confession is the outcome of a fraud being played with the accused, it
is stands relevant. Thus, where the two accused persons were left in a room
where they thought they were all alone, but secret tape recorders were recording
their conversation, the confessions thus recorded were held to be relevant.
Similarly, where an accused was persuaded to submit for a medical examination
for an innocent purpose which was in fact conducted for criminal purpose, his
statements to the doctor and the doctor’s report were held to be relevant at the
discretion of the Court. A confession secured by intercepting and opening a
letter has also been held to be relevant.
c) Circumstances when the accused was drunk
A confession obtained by intoxicating the accused is equally relevant. The law
is concerned to see that the confession is free and voluntary and if this is so
it does not matter that the accused confessed under the influence of drink.
According to the English practice the judge will have discretion in the matter.
deals with the consideration of proved confession affecting the
person making it and others jointly under for the same trial for same
offence. It provides that When more persons than one are being tried jointly for
the same offence and a confession made by one of such persons affecting himself
and some other of such person is proved, the court may take into consideration
such confession as against such other persons as well as against person who make
Reference to the case of State of Maharashtra v. Mohd. Ajmal Mohd. Amir
The courts held that it is safe to place reliance on retracted confessions if it
can be established that the confession is true and has been made voluntarily. It
is also important to keep in mind that the confession has been corroborated
sufficiently. The courts have the power to discard the exculpatory facts and
consider the inculpatory facts.
The courts laid down the following essential principles:
a) A confession can be acted upon only if the court is satisfied that it is
true and has been made voluntarily.
b) The confession must stand true to the facts and should not counter it.
c) It is a rule of judiciousness as to not base a conviction on the basis
of a confession that has not been corroborated
A Confession is an admission made by a person charge with a crime at any time
stating or suggesting the inference that he was committed that crime. Confession
is received in criminal cases upon the principle that a person will not make an
untrue statement against his own interest. Confession may be divided into two
categories; judicial confession and extra-judicial confession. Judicial
confessions are those confessions which are made before a Magistrate or in Court
in the due course of legal proceedings.
Extra-judicial confessions are those
confessions which are made by the accused anywhere else than before a Magistrate
or in Court and extrajudicial confession can be made to any particular person or
to a group of persons.
Judicial confession is a good piece of evidence whereas
extra-judicial confession is a weak piece of evidence and it should be taken
with great care and caution. Apart from judicial and extra-judicial confession
there is a retracted confession also. Retracted confession can be used against
the person making it if it is supported by independent and corroborative
Sections 24, 25, 26 and part of Section 27 of the Indian Evidence Act,
deals with irrelevant confession. Apart from Section 27, relevant
confessions have been dealt with under Sections 28, 29 and 30 of the Indian
Evidence Act, 1872.
Inculpatory and exculpatory statements
in a confession; the
Supreme Court held that confession must be taken as a whole and exculpatory part
should not be thrown or rejected out rightly but it should be put to other
evidence. If there is no sufficient evidence to support the exculpatory part,
there is nothing wrong on rejecting the same. Confession is different from
admission. Confession is made in criminal cases whereas admission is made in
# Retracted confession should undergo heavy scrutiny before relied upon
# Tests should be laid down for the purpose of ensuring the Courts satisfaction
in terms of the honest and voluntary behaviour of the retracted confession
# A witness should be relied upon for the purpose of corroborating the
# Non-reliance upon retracted confession should be made an exception to Article
20(3) of the Indian Constitution. This is because, a retracted confession has
the ability to violate the rights of a victim.
Table of Authorities
#Abdul Razak v. State of Maharashtra, AIR 1970 SC
2831 - 5
#Balwinder Singh v. State, 1975 Cr. LJ 282: AIR 1975 SC
258 - 2
#Emperor v. Mohan Lal, (1881) ILR 4 All
46 - 3
#Kuruma v. The Queen, (1955) AC
197 - 3
#Paulose v. State of Kerala, 1990 Cr. L.J. 108 Ker - 4
#Pyare Lal v. State of Rajastha, AIR 1963 SC
1094 - 2
#Reg v. Jacobs, (1849) 4 Cox
54 - 3
#Reg v. Navroji Dadabhai, (1872) 9 BHC
358 - 3
#S.K. Modi v. State of Maharashtra (1979) 2 SCC
58 - 3
#State of Maharashtra v. Mohd. Ajmal Mohd. Amir Kasab (Conformation Case no. 2
of 2010) 6
#State of Punjab v. Gurdeep Singh (1999) 7 S.C.
618 - 2
#Zwing Lee Ariel v. State of M.P, AIR 1954 SC
15 - 4
#Ritesh Kumar & Shashikant, Confession Under The Indian Evidence Act, 1872,
# R.K. Raizada, Confession in the Law of Evidence: An Incongruity, JILI, 90-106,
# Lal Batuk, The Law of Evidence, 20th Edition, Central Law Agency, Allahabad,
2013 - 2
#Singh Avtar Dr., Principles of the Law of Evidence, 21st Edition, Central Law
2014 - 2
# SCC Online
 Lal Batuk, The Law of Evidence, 20th Edition, Central Law Agency, Allahabad,
 Ibid, P. 175.
 Balwinder Singh v. State, 1975 Cr. LJ 282: AIR 1975 SC 258.
 Ritesh Kumar & Shashikant, Confession Under The Indian Evidence Act, 1872,
IJSARD, 32, 31-41.
 Pyare Lal v. State of Rajastha, AIR 1963 SC 1094.
 State of Punjab v. Gurdeep Singh (1999) 7 S.C. 618.
 Singh Avtar Dr., Principles of the Law of Evidence, 21st Edition, Central
Law Publications, Allahabad, 2014, p.146.
 Kuruma v. The Queen, (1955) AC 197.
 Reg v. Jacobs, (1849) 4 Cox 54.
 S.K. Modi v. State of Maharashtra (1979) 2 SCC 58.
 Reg v. Navroji Dadabhai, (1872) 9 BHC 358.
 Emperor v. Mohan Lal, (1881) ILR 4 All 46
 Singh Avtar Dr., Principles of the Law of Evidence, 21st Edition, Central
Law Publications, Allahabad, 2014, p.152.
 Paulose v. State of Kerala, 1990 Cr. L.J. 108 Ker.
 Zwing Lee Ariel v. State of M.P, AIR 1954 SC 15.
 Abdul Razak v. State of Maharashtra, AIR 1970 SC 2831.
 Singh Avtar Dr., Principles of the Law of Evidence, 21st Edition, Central
Law Publications, Allahabad, 2014, p.173.
 Ibid, P. 173.
 Confirmation case 2 of 2010.