CONFESSIONS AND RETRACTED CONFESSIONS

[Mr. M. GOVINDARAJAN]

The term 'Confession' is used in criminal proceedings.  The Privy Council in 'Pakala Narayana Swamy V. Emperor Lord Atkin' - AIR 1939 PC47:40 Cr. LJ 364 elucidated the meaning and purpose of the expression 'confession'.  The confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.   An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself is a confession.

Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth.   Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law.  Before acting upon a confession the court must be satisfied that it was freely and voluntarily made.   A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of the confession.   The confession should have made with full knowledge of the nature and consequences of the confession.   If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the Court should eschew the confession from consideration.  The authority recording the confession, be it a Magistrate or some other statutory functionary at the pre-trial stage, must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fear, duress of hope of some advantage or reward induced by the persons in authority.   Recognizing the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Evidence Act has excluded the admissibility of a confession made to the police officer.

Sec. 164 Criminal Procedure Code lays down certain precautionary rules to be followed by the Magistrate recording a confession so as to ensure the voluntariness of the confession and the accused being placed in a situation free from threat or influence of the police.

Dealing with retracted confession the Supreme Court in 'Pyare Lal Bhargava V. State of Rajasthan' AIR (1963) SC (1994) clarified the legal position thus - "A retracted confession may form the legal basis of conviction if the court is satisfied that it was true and voluntarily made.   But it has been held that a court shall not base a conviction on such confession without corroboration.  It is not a rule of law, but is only rule of prudence.  It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances can such a conviction be made without corroboration, for  court may, in  a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; bu it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.

In 'Haroon Haji Abdullah V. State of Maharastra' - (1968) 2 SCR 641 the Supreme Court held that a retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false.   The Court further held that the retracted confession is 'a week link against the maker' goes counter to a series of decisions.

As to what should be the legal approach of the Court called upon the convict a person primarily in the light of the confession or a retracted confession has been summarized in 'Bharat V. State of UP' - (1971) 3 SCC 950 - "Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true.  The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case.   The confession must fit into the proved facts and not run counter to them.  When the voluntary character of the confession and its truth are accepted it is safe to rely on it.   Indeed a confession, if it is voluntary and true and not made under inducement or threat or promise, is the most patent piece of evidence against the maker.  Retracted confession, however, stands on a slightly different footing.  As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later.  A court may take into account the retracted confession, but it must look for the reasons for the making of the confessions as well as for its retraction, and must weight the two to determine whether the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant it suser.   All the same, the Courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused.   Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession required the general assurance that the retraction was an afterthought and that the earlier statement was true. 

The Supreme Court in 'Shankaria V. State of Rajasthan' (1978) 3 SCC 435 noted the twin tests to be applied to evaluate a confession:

§ Whether the confession was perfectly voluntary; and

§ If so, whether it is true and trustworthy.

The Court pointed out that if the first test is not satisfied the question of applying the second test does not arise.  The Court indicated one broad method by which a confession can be evaluated.   The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case.   If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.

In 'Paramananda Pegu V. State of Assam' - (2004) 7 SCC 779 the Court dealt with the expression 'corroboration of material particulars.   The said expression does not imply that there should be meticulous examination of the entire material particulars.   It is enough that there is broad corroboration in conformity with the general trend of the confession.  Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court.   The fact that the confession has been made voluntarily, free from threat and incumbent, can be regarded us presumptive evidence of its truth.  Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value.  In order to be assured of the truth of confession, the Court, in a series of decisions, has evolved a rule of prudence that the court should look to corroboration from other evidence.   However, there need not be corroboration in respect of each and every material particular.   Broadly there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence, in substance, the court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true.

The acceptability and credibility of retracted admissional statement is thoroughly discussed by the Supreme Court in 'State (NCT) Delhi V. Navjot Sandhu' - 2005(122) ELT 194.  The Court observed that under the general law of the land as reflected in the Evidence Act, no confession made to a police officer can be proved against an accused.   'Confessions' which is a terminology used in criminal law is a species of 'admissions' as defined in Section 17 of the Evidence Act.   An admission is a statement, oral or documentary which enables the court to draw an inference as to any fact in issue or irrelevant fact.   It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. While sections 17 to 23 deal with admissions, the law as to confessions is embodied in sections 24 to 30 of the Evidence Act.   Section 25 bars proof of a confession made to a police officer.   Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate.   Section 24 lays down the obvious rule that a confession made under any, inducement, threat or promise becomes irrelevant in a criminal proceedings.   Such inducement, threat or promise need not be proved to the hilt.   If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceedings from a person in authority, the confession is liable is to be excluded from evidence.   The expression 'appears' connotes that the court need not go to the extent of holding that the threat etc., has in fact been proved.   If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than a police officer.

A confession leading to discovery of a fact which is dealt with under section 27 is an exception to the rule of exclusion of confession made by an accused in the custody of a police officer. Consideration of a proved confession affecting the person making it as well s the co-accused is provided for by section 30. Sec. 163 Cr.PC prohibits the use of any statement made by any person or trial in respect of any offence under investigation. However it can be used to a limited extent to contradict a witness as provided for by section 145 of the Evidence Act.  Sub-section (2) of section 162 makes it explicit that the embargo laid down in the section shall not be deemed to apply to any statement falling within clause (1) of section 32 or to affect the provisions of section 27 of the Evidence Act.