Retracted Confession under the Bharatiya Sakshya Adhiniyam, 2023: Meaning, Effect on Admissibility, Rule of Prudence, Corroboration and Landmark Judgments

Almost every confession relied upon at an Indian trial has been retracted by the time the trial begins. The question the courts have had to answer is therefore not academic: what happens to a confession when the man who made it says, from the dock, that he never made it or that it was beaten out of him? The answer is settled. Retraction does not touch admissibility. It affects weight, and it brings into play a rule of prudence that has hardened into a rule of practice — that a court will look for corroboration in material particulars before acting on it.

1. Meaning

A retracted confession is one which the maker, having made it, subsequently resiles from. The retraction may take several forms and may occur at several stages, and both matter to the weight the court attaches to it.

Form of retraction	What the accused says	Effect
Denial of making it	That he never made the statement attributed to him	Puts the prosecution to proof of the making. In the case of a judicial confession this is a difficult stance, given the record and the memorandum
Allegation of coercion	That it was extracted by force, threat or inducement	Raises the question under Section 22, and requires the court to be satisfied afresh on voluntariness
Denial of its truth	That he made it but it was untrue — to shield another, out of fear, or to end interrogation	Admissibility is unaffected; the question is whether the confession is true
Partial retraction	That parts of it were made and are true, and parts were not	The court examines the statement as a whole and assesses which parts, if any, can safely be acted upon

When the retraction occurs	Significance
At the first opportunity — on production before the Magistrate, or in the earliest application	Carries real weight. A prompt and particularised allegation of pressure is the strongest attack on voluntariness
During the committal or framing of charge	Still reasonably prompt; the reasons offered are examined
Only at the trial, when the accused is examined	Materially weaker. The delay itself requires explanation, and a bare denial offered for the first time at the trial carries little
After conviction, in appeal	Ordinarily of no value, unless supported by material that was not available earlier

2. Effect on Admissibility

Admissibility is determined by the circumstances in which the confession was made, and those circumstances do not change because the maker later changes his mind. A retracted confession is therefore fully admissible, provided it was not excluded when made.

Question	Position
Does retraction render the confession inadmissible?	No. Admissibility is judged as at the time of making
Does retraction make it irrelevant under Section 22?	No, unless the material offered in support of the retraction shows that the confession appears to have been caused by inducement, threat, coercion or promise
Does retraction shift the burden?	No. The prosecution must in any event satisfy the court that the confession was voluntary and true
Can a conviction rest on a retracted confession?	Yes, in law. But the court will not ordinarily do so without corroboration
Is corroboration required as a matter of law?	No. It is a rule of prudence, and there is no inflexible rule of practice either

3. The Rule of Prudence

📖 Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094

Held: 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 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 that in no case shall conviction be based without corroboration of a retracted confession, for it may be that in an exceptional case the nature of the confession and the circumstances are such that the court is convinced of its truth without corroboration.

Ratio: The governing statement. Corroboration is a rule of prudence and not even an inflexible rule of practice.

📖 Subramania Goundan v. State of Madras, AIR 1958 SC 66

Held: A retracted confession is a weak link against the maker and there must be some other tangible evidence to fortify it. The court must first be satisfied that the confession was voluntary and true, and must then look for corroboration in material particulars before acting upon it.

Ratio: The two-stage approach — voluntariness and truth first, corroboration second.

📖 Shankaria v. State of Rajasthan, (1978) 3 SCC 435

Held: A confession is subjected to a double test before it may be acted upon. The court must be satisfied, first, that the confession was voluntary — that it was not the result of inducement, threat, coercion or promise, and that the safeguards attending its recording were substantially complied with; and second, that it is true, which is assessed by comparing it with the rest of the evidence and the probabilities of the case. Both tests must be satisfied, and a confession that fails either cannot be acted upon.

Ratio: The double test of voluntariness and truth, applied to every confession and with particular care to one that has been retracted.

3.1 Why prudence and not law

The rule has no statutory basis. Nothing in the Adhiniyam requires corroboration of a confession, retracted or otherwise. Section 139 provides that no particular number of witnesses is required for the proof of any fact.
Section 25 supplies the underlying principle. Admissions and confessions are not conclusive proof, and the maker may show that his earlier statement was untrue. A retraction is the assertion of that right.
The rule reflects experience rather than doctrine. Custodial confessions have often proved to be extracted, and a person who retracts at the first opportunity is doing what an innocent man wrongly pressured would do. The courts have therefore developed caution as a working practice.
It leaves the court free. Because it is a rule of prudence, a court which is convinced of the truth of a confession may act upon it without corroboration, provided it explains why.

4. What Corroboration Is Looked For

Requirement	What it means
Independent	It must come from a source other than the confession itself and other than the maker. A confession cannot corroborate itself, and the detail it contains is not corroboration of it
In material particulars	It must relate to the substance of the case, not to peripheral or uncontested detail. Confirmation that the deceased died on the date stated is not corroboration
Connecting the accused with the offence	It must tend to show that the maker took part in the offence, and not merely that the offence occurred
Need not be direct	Circumstantial material may corroborate, and corroboration need not extend to every detail of the confession
Need not be conclusive	It is enough that the material lends assurance; corroboration that would itself prove the case makes the confession unnecessary

The classic sources of corroboration for a retracted confession are the recovery of a weapon or article at the instance of the accused, the medical evidence, the presence of the accused established independently, and the circumstances described in the confession that only a participant could have known and that are independently verified.

⚠ Detail in the confession is not corroboration of the confession

It is sometimes said that a confession containing detail which only a participant could have known is thereby corroborated. That is not accurate as stated. The detail becomes corroborative only where it is independently verified — where the confession describes the place of concealment and the article is then found there, or describes an injury and the post-mortem confirms it. Detail which is merely internally consistent, or which corresponds to what was already in the case diary, corroborates nothing.

5. Retracted Judicial and Extra-Judicial Confessions

	Retracted judicial confession	Retracted extra-judicial confession
What is on record	The formal record made under Section 183, BNSS, with the memorandum and the signature of the maker	The oral testimony of the person to whom it was made
The usual dispute	Whether it was voluntary, and whether the safeguards were substantially complied with	Whether the confession was made at all
Effect of the record	The record and the Magistrate's evidence make a bare denial of the making very difficult to sustain	There is no record; the dispute is one of oath against oath
Corroboration	Sought in material particulars as a rule of prudence	Sought in any event, whether or not retracted, because the category is itself treated with caution
Where the audio-video record exists	The recording under the proviso to Section 183(1) BNSS ordinarily settles the circumstances of the making	Rarely available

📖 Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403

Held: An extra-judicial confession is a weak piece of evidence by itself and must be examined with great care and caution. It should be made voluntarily and should be truthful, and should inspire confidence. Its evidentiary value increases where it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. It should not suffer from any material discrepancies or inherent improbabilities, and it has to be proved like any other fact and in accordance with law.

Application: Where an extra-judicial confession is retracted, the caution the category already attracts operates with additional force.

6. Retracted Confession of a Co-Accused

Where the confession relied upon is that of a co-accused, retraction operates on material that was already of very limited value.

Stage	Position
Before retraction	Not evidence. Section 24 permits the court only to take it into consideration against a co-accused, and it can never found a conviction
After retraction	The court examines the retraction as it would in any other case. Its already limited value is reduced further
Effect on the order of reasoning	Unchanged. The other evidence must be sufficient by itself; only then may the confession be thrown into the scale
Can it corroborate an approver?	No. Corroboration must come from an independent source, and a co-accused's confession is not independent evidence

📖 Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184

Held: A Constitution Bench held that the confession of a co-accused is not evidence as defined in Section 3 of the Indian Evidence Act. It is not given on oath, not made in the presence of the accused, and cannot be tested by cross-examination. Section 30 merely enables the court to take it into consideration, and such a confession can be used only to lend assurance to other evidence against the co-accused. Where the other evidence is insufficient, the confession cannot be pressed into service to make it sufficient.

Application: A retracted confession of a co-accused stands lower still, and cannot repair a case that is deficient without it.

7. How a Court Approaches a Retracted Confession

Step	Question	If the answer is adverse
1	Is the statement a confession at all, read as a whole?	Sections 22 to 24 do not apply. It may still be an admission under Section 15
2	Was it made to a police officer, or in police custody otherwise than before a Magistrate?	Excluded by Section 23, save for any portion within the proviso
3	Does it appear to have been caused by inducement, threat, coercion or promise?	Irrelevant under Section 22. The enquiry ends
4	Is it voluntary on the whole of the material, including the reasons offered for the retraction?	It cannot be acted upon
5	Is it true, tested against the other evidence and the probabilities?	It cannot be acted upon, however voluntary
6	Is there corroboration in material particulars connecting the accused with the offence?	A conviction is not impossible, but the court must explain why it is satisfied without corroboration
7	Against whom is it being used?	Against a co-accused, Section 24 applies and it may only lend assurance

7.1 Factors bearing on the retraction

Factor	Supports the confession	Supports the retraction
Timing of the retraction	Raised only at the trial, without particulars	Raised at the first opportunity, with a specific allegation
Particulars of the allegation	A bare assertion that the confession was forced	A specific account of who applied pressure, when and how
Medical evidence	The medical examination records no injury	Injuries recorded, or a contemporaneous complaint of ill-treatment
Custody before recording	The accused was in judicial custody for a period, with time to reflect	Produced directly from police custody and recorded at once
Compliance with the safeguards	The warning, explanation and memorandum are complete and were real	The memorandum is formulaic, or the safeguards were formal only
Content of the confession	Contains detail independently verified, and fits the other evidence	Follows the prosecution case exactly, in the language of the case diary
Corroboration	Recovery, medical evidence or independent presence supports it	Nothing outside the confession supports it

8. Related Topics and Provisions

Topic or provision	Connection
Confession — Meaning, Nature and Evidentiary Value	The definition and the several kinds of confession
Voluntary and Involuntary Confession	Section 22, and the tests of voluntariness applied afresh when a confession is retracted
Judicial and Extra-Judicial Confession	The safeguards under Section 183 BNSS, and the scrutiny of extra-judicial confessions
Confession of Co-Accused — Section 24	The status of a co-accused's confession, before and after retraction
Substantive Evidence and Corroborative Evidence	What amounts to corroboration in law
Section 25, BSA	Admissions and confessions are not conclusive proof — the principle underlying the right to retract
Section 139, BSA	No particular number of witnesses is required for the proof of any fact
Section 183, BNSS, 2023	Recording of confessions, the memorandum, and the audio-video safeguard