Let me at the very inception point out to my readers that there is no rule either in the Evidence Act or in any other law in India, at least to the best of my knowledge, which expressly forbids retracted confession for convicting a person. This itself clearly vindicates that retracted confession can be relied upon if it is found reliable and a credible explanation is forwarded by the person making the retracted confession and the concerned court is convinced of its truthfulness and authenticity.

But let me make here one thing absolutely clear:
Before relying upon retracted confession, the court must satisfy and convince itself completely about the truthfulness of the retracted confession and should corroborate his/her confession as it is unsafe to convict an accused person solely on the basis of the retracted confession. Supreme Court itself held in PK Singh v State of Manipur, AIR 1956 SC 9, Panu v State, 1978 Cr LJ 690, Abdul Ghani v State of UP, 1973 Cr LJ 280 and Shankaria v State of Rajasthan, AIR 1978 SC 1218 that even if a confession is inculpatory, corroboration is necessary if the confession is retracted. In Henry West Huller v State of Assam, 1985 Cri LJ 1079, it was held by Apex Court that if the retracted confession is generally corroborated by circumstantial evidence, it can be acted upon.

Moreover, retracted confession is not accorded a very high evidentiary value and is looked upon with suspicion. In a recent case – Adambhai Sulemanbhai Ajmeri & Ors v State of Gujarat 2014 (3) Crimes 79 (SC), it was held that conviction cannot be ordered on the basis of retracted confession. This alone explains that why in case of retracted confession, courts usually look for corroboration as it is highly unsafe to convict anyone on retracted confession alone without corroboration. There is no hard and fast rule that corroboration is imperative before convicting anyone but usually as a precautionary measure it has more or less become a standard procedure to not rely on retracted confession alone unless corroborated.

In Pyare Lal Bhargava v State of Rajasthan, AIR 1963 SC 1094, the four-Judges Bench of the Supreme Court observed that, A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been also held that, A court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration ; but 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 is true and voluntarily made and has been corroborated in material particulars. In Puran v State of Punjab (I), AIR 1953 SC 459, it has been held by the Supreme Court that, It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars, it is not prudent to base a conviction on its strength alone. In Palanisamy v State, AIR 1986 SC 593, it has been held by the Supreme Court that retracted confession without independent corroboration cannot sustain conviction.

Let me reiterate here again very strongly that there is no rigid rule that retracted confession cannot be acted upon without corroboration. There have been such cases where conviction has been based on retracted confession alone.

In E v Dhani, 20 Cr LJ 721, it was held that, Sometimes an accused is found to resile from his confession in the Committing Magistrate's Court or in the Sessions Court. Generally where an accused adheres at the trial to a previous judicial or extra judicial confession, it may, if the Court believes it, be acted upon without corroboration.

In State of Maharashtra v PK Pathak, AIR 1980 SC 1224 as also in State of Delhi v Vijai Pal, AIR 1980 SC 1621, it was held by the Apex Court that, The settled view of the Supreme Court of India is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated, but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated, nor is it essential that the corroboration must come from the circumstances discovered after the confession was made.

Before proceeding further, it is imperative to understand precisely the meaning of retracted confession. Advocate Batuk Lal in his well researched book 'The Law Of Evidence' rightly points out that, A retracted confession is a statement made by an accused person before the trial begins, by which he admits to have committed the offence, but which he repudiates at the trial. After the commission of a serious offence some police officer makes investigation into the matter, examines witnesses and the accused.

If in his opinion the accused is proved to have committed the offence, he submits a report (charge-sheet) to a Magistrate having jurisdiction in the matter. The court takes evidence and examines the accused. If during the investigation, the accused on being examined by the police officer is willing to admit the guilt, the police officer sends the accused to some Magistrate for recording his statement. The Magistrate after being satisfied that the accused is making the statement voluntarily, takes his statement. If the accused admits in his statement to have committed the offence, this recorded statement by the Magistrate may be proved at the trial.

When the trial begins the accused on being asked as to whether he committed the crime, he may say that he did not commit the crime. The question may again be put to him as to whether he made statement before a Magistrate during the investigation confessing the guilt. He may deny to have made the statement at all or he may say that he made that statement due to undue influence of the police. In this case the confession made by the accused to the Magistrate before the trial begins, is called retracted confession.

In Brij Lal v State of MP, AIR 1970 SC 1080, it was held by the Supreme Court that, Retracted confession is a statement made by a person before the trial of a case begins by which he admits to have committed the offence, but which he repudiates at a later stage at the trial. In Gour Chandra Das v R, ILR 54 Mad 75, it was held that, A confession is called retracted confession when it is withdrawn by the maker at the time of trial before passing of sentence against him. The Indian Evidence Act makes no distinction between a retracted and unretracted confession. Both are equally admissible and may be taken into consideration against the accused.

Also, in Pyare Lal Bhargava v State of Rajasthan, AIR 1963 SC 1094, it has been held by Apex Court that, A retracted confession is, therefore, relevant evidence, though less reliance may be placed on such evidence. But that relates only to weight of evidence and not relevancy and admissibility. Even as regards weight to be attached to such evidence, there is no provision in the Indian Evidence Act which prohibits a conviction to be based on a retracted confession without any corroborative evidence.

Further, in Swaran Singh Ratan Singh v State of Punjab, AIR 1957 SC 637, the Supreme Court laid down that, In law it is always open to the court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless, usually courts require some corroboration to the confessional statement before convicting an accused person on such statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case. This has been followed and abided in Kehar Singh v Delhi Administration, AIR 1988 SC 1883 and State of Maharashtra v Damu Gopinath Shinde, AIR 2000 SC 1691.

While craving my readers indulgence, let me bring out here that the amount of corroboration necessary for sustaining conviction is a question of fact and the court concerned decides it in the light of particular circumstances of each case. In Swaran Singh v State of Punjab, AIR 1957 SC 637, Sher Singh v State (1969) 71 Punj LR (D) 198 and also in Bhuboni Sahu v The King AIR 1949 PC 257, it was held that the fact of retraction puts the court on enquiry as to its voluntary character, its truth and consequent evidentiary value.

If on considering the circumstances the court believes that it is true, it can base conviction. If it believes that the confession may be involuntary or untrue it may require corroboration. The amount of corroboration necessary for sustaining conviction is a question of fact to be decided in the light of circumstances of each case. It has been rightly pointed out in Gurudev v State (1968) Cr LJ 244 that, In practice, it is submitted, the courts do not rely upon retracted confession without fullest and strongest corroboration as to factum of crime and as to identity of the accused.

Now the pertinent question arises : To what extent should the retracted confession be corroborated ? To answer this, let us look at some important Apex Court rulings which shed important light in this regard. In State of Orissa v Kebalanand Patnaik, (1969) Cr LJ 1174, the Apex Court held that:
It is not, however, necessary that the corroboration from independent evidence be in all details. It is enough if it is substantially corroborated by independent evidence. Also, in State of UP v Boota Singh, AIR 1978 SC 1770, it has been held by the Supreme Court that, A retracted confession can be acted upon only if substantially corroborated by independent evidence. It is not necessary that it should be corroborated in each material particular. It is sufficient if there is a general corroboration of important incidents mentioned in the confession.

In yet another case – Parmananda Pegu v State of Assam, AIR 2004 SC 4197, it was held by Supreme Court that a retracted confession cannot be acted upon unless corroborated in material particulars. As not a single circumstance or fact corroborated the facts revealed in confession and confessional statement was in contradiction of medical evidence it was held that conviction solely on the basis of such confession was not proper.

Further, in Latu Mukhi v State of Orissa, (1969) Cr LJ 1172, the accused made an extra-judicial confession before the witness that he assaulted his wife. The witness told about the confession to another person who went to the house of the accused and found the body lying with bleeding injuries. Later on the said extra-judicial confession was retracted. The Court held that the fact that the other person, whom the witness told about the confession and who was also examined as witness, saw the body lying with bleeding injuries was sufficient corroboration.

Also, in Pakkirisamy v State of TN, AIR 1998 SC 107, the accused was in acute shortage of money and the onerous burden of marrying his unmarried sister was also on him. It was alleged that he had murdered his master's wife and took away jewellery and other valuables. He himself also made confession in front of village administrative officer but pleaded innocence before the trial court. There was no eye witness and there was only circumstantial evidence.

His confession was, however, corroborated by recovery of jewellery and other valuables at his instance. He had also absconded after the crime happened and was unable to give any satisfactory explanation in his own defence. His conviction was upheld by the Supreme Court.

It is a matter of simple prudence that where the accused himself retracts his confession and does not stick firmly to his confession made earlier, it clearly implies that the accused credibility is itself in doubt and in such a case even the court itself would dither in basing its conviction on such a retracted confession. In Rabindra Kumar Pal @ Dara Singh v Republic of India, AIR 2011 SC 1436, the Supreme Court reiterated that:
A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. But as I said earlier there is no hard and fast rule that no conviction can be based on retracted confession and I had even pointed out many such cases where conviction was accorded even in case of retracted confession. It is just as a matter of prudence and precaution that courts should insist on corroboration from independent evidence in case of retracted confession.

I would infact now quote a case where Supreme Court has accorded full approval to retracted confession and admitted that non-retracted confession is a rarity in criminal cases and to retract is the right of confessor and a judicial confession cannot be jettisoned just because it is a retracted one.

In a landmark case – Tamil Nadu v Kutty @ Laksmi Narasimhan, AIR 1964 SC 2778, Tamil film actress Rani Padmini and her mother were butchered in their flat in Madras and their driver, cook and watchman were charged with murder. The confessions of the two of the accused were recorded by Judicial Magistrate under Section 164 of CrPC but they were later retracted by the accused.

The Sessions Judge, however, relied on the retracted confessions and found all the three guilty under Section 302 of IPC. However, the High Court overturned the conviction on the grounds that the confessions were retracted and that the recovery of stolen articles was made before the confessions were made. On appeal by the state of Tamil Nadu against acquittals by the High Court, the Supreme Court disagreed with the High Court and restored the trial judge's verdict and held that,  It is not the law that once a confession was retracted the court should presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases.

To retract from confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Even for that, retracting the confession is not the ground to throw the confession overboard. All the courts in India before jettisoning a confession merely on the ground of its being a retracted confession must keep in mind what the highest court of India – Supreme Court held in this landmark case and try to always adhere by it.

It is imperative to point out here what the Law Commission feels in this regard. The 14th Report of the Law Commission of India observed that, There is no statutory requirement that the confession of an accused person, later retracted should be corroborated before it is acted upon. In a large number of cases, prisoners who have made lengthy and detailed confessions duly recorded under Section 164, Criminal Procedure Code, and have reiterated them in committing Magistrate's court, resile from these confessions in the court of sessions... Judicial decisions have laid down the rule that while a conviction on a retracted confession is not illegal, yet prudence dictates that a conviction should be based on such a confession, only if it is corroborated by independent testimony.

Supreme Court itself held in K Aruna Kumari v Govt of AP AIR 1988 SC 227 that:
Retracted confession need not be totally rejected. It has to be considered in the context of various factors, such as whether the confession was untrue and whether there is any independent corroboration for the confession in it general particulars.

In Sarvan Singh v State of Punjab, AIR 1957 SC 637, it was held by the Apex Court that:
In law it is always open to the court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration is necessary in such a case would always be a question of fact to be determined in the light of the circumstances of the case.

Even if there is no independent corroboration, conviction can still be ordered by the court if it is satisfied that the retracted confession is bona fide and can be relied on. Let me also point out here what Advocate Batuk Lal points out in his book 'The Law Of Evidence' that:
The rule of prudence requires that a confession must be corroborated before conviction can be based upon it. But the rule of prudence does not require that each and every circumstance mentioned in the confession with regard to the participation of the accused person in the crime must be separately and independently corroborated, nor is it essential that the corroboration must come from the fact and circumstances discovered after the confession was made.

If the rule required that each and every circumstances mentioned in the confessional statement must be separately and independently corroborated, that the rule would be meaningless in as much as the independent evidence itself would afford sufficient basis for conviction and it would be unnecessary to call the confession in aid. Very rightly so. A conviction can be based on retracted confession but it has to be done most cautiously and after being fully satisfied of its utility!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh