The role of confessions in the law of criminal evidence is of utmost significance. Unlike ordinary evidence, confessions are direct evidence from the offender and that is precisely why the law provides for a lot of safeguards against the admissibility of confessions. Of all types, the extra-judicial confession – being one not made before a magistrate or any court during the course of legal proceedings – seems to be the most difficult one to deal with in the Indian legal system. It is unformulated by statute, does not consist of any oral evidence, and usually, no document is drawn before the confession is made.

During the course of over 1 hundred years of juristic principles according to the Indian Evidence Act of 1972, there was developed an extensive body of jurisprudence regulating the voluntary nature, truthfulness, admissibility, and corroboration value of out of court confessions in India. As regards that, it is necessary to say that virtually the same principles are maintained by the Bharatiya Sakshya Adhiniyam of 2023 (“BSA”) as the provisions regulating confessions were preserved in Sections 15 and 22-26 of the Act with certain amendments. Therefore, this article presents an analysis of the legal principles governing extra-judicial confessions including their definition, nature, evidential weight and the conditions under which the confessions might be the basis for the conviction, dealing with withdrawn confessions, corroboration requirements, and the rationale behind the major decisions of the Supreme Court and the High Courts.

II. MEANING, DEFINITION, AND CLASSIFICATION OF CONFESSIONS

A. The Concept of Confession

The term “confession” is not defined by the Indian Evidence Act, 1872, nor by the Bharatiya Sakshya Adhiniyam of 2023. This void was then filled by various judgments of Courts starting from the leading case of the Privy Council in.

“In the words of a memorable case, “Confessions are statements made by the accused which either cover more or less the offence itself or all the facts constituting the offence”.

Two important responsibilities have been entrusted to this definition. The first one is differentiating the confession from the admission as it is worth mentioning that although every confession can be regarded as admission, the opposite is not true: there exist situations when the admission outlines the case without making any reference to the guilt (for instance, the information can be relevant for the matter) and vice versa, namely confession presupposes that the guilt has been admitted. In addition to that, it excludes the so-called “mixed” declarations (for instance use of the self defence as a reason behind one’s actions) which are considered as admissions that are taken into one whole but are not confessions and thus cannot be considered as admissions assuming that one part is taken into account while the other one is not.

In the Sahoo case (Sahoo v. State of U.P., AIR 1966 SC 40), it was confirmed that a confession is not required to be communicated to another person as an essential element of a confession. The accused was overheard speaking to himself, confirming the killing of the victim, and it was decided that such utterances could be regarded as an extra-judicial confession because the provisions of Sections 24–30 of the Evidence Act (corresponding to Sections 22–26 of the BSA) do not indicate that a confession must be made to someone else. The ruling has also stated, however, that the confessional dialogue is basically the utterance of “the confused mind” and cannot by itself serve as a basis of conviction without any other supporting evidence to prove in what precise words such confession was made.

B. Judicial Confession

Judicial confession means confessions made in a court, during a judicial proceeding. Judicial confessions are made according to Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 164 of the Criminal Procedure Code). There are several precautions surrounding judicial confessions. It has to be made clear by the magistrate that confession is voluntary, an appropriate warning has to be given to the accused person that he need not make the confession and that the statement can be used against him, proper time has been allowed for consideration of taking a voluntary confession and finally, an appropriate certificate has to be given by the magistrate. Judicial confession has a good degree of reliability due to an independent judicial officer having certified the judicial confession.

C. Extra-Judicial Confession

By way of contrast, an extra-judicial confession would be a confession made by the accused at a place other than before a Magistrate or Court in a judicial proceeding – in other words, in front of any person, including a policeman (provided the point mentioned below does not apply), a relation, a friend, fellow prisoner, a member of the panchayat, or even a public official not in his judicial capacity. As mentioned above in

Definition and Meaning of Extra-Judicial Confessions: ‘Extra-judicial confessions are confessions made by a person to someone else who does not belong to law enforcement and it also includes to a judicial officer acting in non-official capacity. It covers a Magistrate who is not specially authorized to record the confession, or is authorized but has taken it at a situation when the safeguards are not valid.’ – In State of Rajasthan v. Raja Ram, (2003) 8 SCC 180

The main characteristic of the extra-judicial confession is its total lack of the procedural guarantees associated with a judicial confession, which includes the absence of any judge for certification of voluntariness, the absence of any contemporaneous account, and the absence of the formal warning being given to the accused. The evidence in relation to an extra-judicial confession lies solely in oral testimony, normally the testimony of one person only, of what the accused said.

D. Confession to Police (“Police Confession”)

In an entirely different context, confession to a police officer requires an explicit legal jurisdiction. The Business and Securities Act 22(1) forbids any evidence derived from the confession of the accused which is given to police officers, irrespective of the fact whether this confession was free or voluntarily given. The Act 22(2) extends its field of regulation to confessions made in custody of the police, which are admissible only if made directly in the presence of a Magistrate. The reason for such strict limitations was explained by the Privy Council in the case Queen Empress v. Babulal, and lies in the necessity of preventing the practice of extorting confessions from the suspects by the police with the use of torture and third degree methods for the sake of achieving a conviction.

E. Disclosure Statement Distinguished

A disclosure statement made in accordance with the provisions of Section 23 BAC can be distinguished from any confession. It can be formulated under Section 176(3) of the Bharatiya Nagarik Suraksha Sanhita 2023 (former Section 27 CrPC). A disclosure statement includes the information only about certain factual details concerning some discoveries. The statements in respect of confession cannot be included because they do not depict any occurrence or fact. To conclude, in essence, a disclosure statement is not considered as evidence of confession.

III. STATUTORY FRAMEWORK: THE BHARATIYA SAKSHYA ADHINIYAM, 2023

The BSA, promulgated on 25 December 2023 and repealing the Indian Evidence Act, 1872, carries forward the confession clauses from the older statute but renumbers and adds two explanatory provisos to them. The relevant provisions are:

Section 15 – Admission Defined

Offers the definition of the term “admission,” (which relates to Section 17 of the 1872 Act), a confession being considered one type that applies solely to the individual charged with committing an offense.

Section 22 – Confession Caused by Inducement, Threat, or Promise, Irrelevant in Criminal Proceeding

In line with Section 24 of the 1872 Act, this section makes any confession made by an accused person irrelevant in case it seems to the Court that such a confession has been procured by any inducement, threat or promise from any person in authority, which is adequate to create in the mind of the accused reasonable grounds for believing that by making the confession he will likely to gain some advantage or avoid some evil of temporal nature relating to the proceedings against him. It may be seen that all that needs to be established by the Court is that it appears to it that such confession was so made; absolute certainty in this regard is not necessary. Also, as per the BSA, through explanatory provisos, the fact that a confession was made on the promise of secrecy, due to a deception practised on the accused, when the accused was in drunken state, answering questions he was not obligated to answer, or without any caution that he was not required to confess, does not render the same irrelevant.

Section 23 – Confession to Police Officer and Confession by Person in Police Custody

Section (1) and (2), analogous to Section 25 and 26 of the Indian Evidence Act of 1872, prohibits proving any confession made before a police officer. Section 2 allows evidence of any confession made while in custody of police only in front of a Magistrate. The Section clarification on Section 27 of Indian Evidence Act permits admission in evidence of the extent of information related to the discovery of the fact by the police. The validity of this Section was assessed with reference to Article 20(3) of the Constitution of India.

Section 24 – Consideration of Proved Confession Affecting the Maker and Co-Accused Jointly Tried

Section 32 of the Act of 1872 corresponds to Section 30 of the 1872 Act, according to which the court in case of joint trial of two or more persons for the same offence may have regard to a proved confession made by any of such persons affecting himself and his co-accused. This section of the BSA has been supplemented by an illustration to explain that a trial is considered a “joint trial” for purposes of application of this section, even when one of the accused has absconded or not replied to proclamation under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023. It is established beyond doubt, irrespective of the above position of law, that a confession is not “evidence” as per the meaning of the term in Section 3 of the Evidence Act/BSA.

Section 25 and Section 26 – Admissions Not Conclusive; Statements by Persons Who Cannot Be Called as Witnesses

Under Section 25, which corresponds to the provisions set in Section 31 of the 1872 Act, admissions are not regarded as definite evidence of the matter stated even though they may act as estoppels. Section 26 which corresponds to Section 32 speaks about statements made by dead or absent persons. The provision is different from, but sometimes overlaps with dying declaration, which can be confessional in terms of incrimination of others.

These provisions show that the BSA has specifically maintained the framework of the 1872 Act in relation to confessions instead of affecting any considerable changes. Therefore, all relevant case law dictated by the Evidence Act still applies for the courts working with the BSA all the same with only sections renumbered.

Comparative Table: Confession Provisions, IEA 1872 → BSA 2023

Subject Matter	Indian Evidence Act, 1872	Bharatiya Sakshya Adhiniyam, 2023
Definition of admission	Section 17	Section 15
Confession caused by inducement/threat/promise – irrelevant	Section 24	Section 22 (with additional clarificatory provisos)
Confession to police officer barred	Section 25	Section 23(1)
Confession while in police custody barred (except before Magistrate)	Section 26	Section 23(2)
Discovery statement exception	Section 27 (proviso)	Proviso to Section 23
Confession by co-accused in joint trial	Section 30	Section 24 (with explanation on absconding co-accused)
Admissions not conclusive proof	Section 31	Section 25

IV. VOLUNTARINESS, TRUTHFULNESS, AND CREDIBILITY: THE GOVERNING PRINCIPLES

The law has held that there are three inquiries to be satisfied before a confession made outside judicial supervision can be valid:

The confession must be made voluntarily; it cannot be the result of promise, threat, or other coercion by an authority figure. “Voluntariness” is always assessed objectively, taking into account the relevant circumstances of the confession – the relationship between the accused and the witness, etc.
The confession must be the truth – it must fit the facts coherently. If the confession is not internally consistent, it cannot be treated as true.
Trustworthiness of the witness – when it comes to extra-judicial confessions their legality arises from the credibility of person who heard them. Courts try to find out any reasons for a witness to dislike the accused as well as whether the circumstances of making the confession are reasonable and logical, if the confession was disclosed to the police the witness has to explain why it was not done earlier and whether the testimony of independent witnesses should be paid attention to in the consideration of the case.

The Supreme Court’s decision in

State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 – sets forth the composite test in the following way: the acceptance of an extra-judicial confession, as well as the conviction arising out of it, can take place when the evidence concerning the confession is provided by the witnesses who are neither biased nor hostile to the accused in any way, and no indication of the possibility of false evidence by the witness stemming from a motive is apparent; further, the statement of the witness has to be straightforward and have to strongly suggest that the accused person is the offender in the given case. Once the evidence provided by the witness successfully passes this rigorous test of reliability, the confession can be taken into consideration for the sentencing.

Of equal importance is the fact that the Supreme Court made clear, in the very same judgment, that there is no automatic presumption on the part of the courts that an extra-judicial confession is always weak evidence which should always be approached with suspicion; rather, it all hinges on the context and the timespan in which it was made, along with the credibility of the witnesses speaking about it. This may perhaps be regarded as a correction to the more definitive statements of old, such as

In Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259, and Kavita v. State of Tamil Nadu, (1998) 6 SCC 108 – Extra-judicial confession being an inherently weak piece of evidence, calls for the highest degree of caution.

Taken in conjunction, the better and settled view is that an extra-judicial admission is not necessarily poor evidence but rather evidence which, by virtue of the lack of process safeguards in its taking, warrants more scrutiny than a judicial admission, but which, upon passing such scrutiny, is as good as any other piece of valid evidence.

The Supreme Court in

Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403 – laid down what constitutes the standard test for courts: “In considering whether to rely on the extra-judicial confession for convicting the accused, the court should, after taking into account the entire prosecution case, be convinced that the confession is believable and has been corroborated by other evidence available in the prosecution case; the court shall rightly reject such a confession which is either internally improbable or contradictory and which is unbelievable in the context of the prosecution case.”

V. EXTRA-JUDICIAL CONFESSION AS THE SOLE BASIS OF CONVICTION

It is not prohibited, by statute, to base a conviction upon a confession made outside of court; this is neither forbidden by the 1872 Act nor by the BSA. The issue of whether or not a conviction can be based exclusively on such a confession must be resolved not by legislation but by common law.

A. Circumstances in Which Courts Have Accepted an Extra-Judicial Confession as the Sole Basis of Conviction

A confession that has been made out of court will serve as only a ground for conviction where the following conditions exist::

That confession is proved to be voluntary and made by a person who is mentally sound and coherent, without being influenced by fear, coercion, or promises;
The person who received the confession is trustworthy and unbiased and has no particular reason to falsely accuse the person confessing;
The contents of the confession must be consistent with and corroborated by the facts and evidence presented by the prosecution, including scientific or medical evidence;
There is no undue and suspicious delay between the time of confession and the time of the confession being produced before the investigators;
The confession can be proved by circumstances around the case, like motives, means, and behavior of the persons involved.

In the case of State of Rajasthan v. Raja Ram (2003) 8 SCC 180, the Supreme Court decided that the evidence pertaining to an extra-judicial confession may be sufficient basis by itself for a finding of guilt provided such extra-judicial confession is found to be trustworthy.

Similarly, in

Sansar Chand v. State of Rajasthan, (2010) 10 SCC 604 – the Court held that there was no hard-and-fast principle which prevented conviction based solely on an extra-judicial confession, even as it was recognized that as a matter of practice, corroboration was required.

B. Circumstances in Which Extra-Judicial Confessions Have Been Rejected

On the contrary, courts have refused to take action against extra-judicial confessions either corroborated or not whenever that confession appears to be made under clouded circumstances. Examples of reasons for rejection of such confession may include:

Unaccounted and significant delays in the making the confession known to the police or investigating authority;
Confession having reportedly been made to somebody not holding any status, position, or relationship with the accused providing sufficient ground for making this confession;
The person having witnessed the confession being someone with the bias, personal conflict, or any interest making this person provide prejudiced evidence;
The confession being incomplete, abstract or missing the particulars which only actual perpetrator would be able to provide; and
The confession serves as the single point in the chain of circumstances, which is incomplete and also deemed unreliable; this implies that not all reasonable theories of innocence have been ruled out.

The Rajasthan High Court’s decision in

Ram v. State of Rajasthan is a case that provides examples of various reasons together: the purported confession was given 12 days after the incident to individuals who were not proven to be reliable enough to provide protection to the defendant from being bullied and, therefore, the situation surrounding the confession was unusual and improbable in general; thus, the Court has declared the confession as unreliable and, therefore, not suitable for supporting the guilty sentence as it is generally known (from the case Makhan Singh v. State of Punjab) that extrajudicial confession is weak evidence.

What comes out of these judgments is that the court does not follow one set formulaic approach but rather engages in a factual investigation: an out-of-court confession which passes the test of voluntariness, reliability, and witness’s credibility will suffice in itself to secure a conviction, while one which fails this test is rejected even if there is other corroborative evidence available, as it cannot be rehabilitated by anything else.

VI. EVIDENTIARY VALUE OF RETRACTED EXTRA-JUDICIAL CONFESSIONS

An A confession which is made out of the purview of judicial proceedings is often withdrawn by the person making it at the time of trial, either under Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in accordance with Section 313 of the CrPC), or a complete denial of having made such a confession. The act of withdrawal, per se, does not make the confession involuntary or non-admissible, because no proof of coercion while making the confession would invoke Article 20(3) of the Constitution.

The legal position in this regard may be briefly stated as:

A retracted confession could constitute legal ground for a conviction if, upon a scrutiny of the evidence presented in court, it is found that the confession was true and voluntary – State of Maharashtra v. Mohd. Ajmal Amir Kasab, (2012) 9 SCC 1, wherein it was held that the court could rely upon a retracted confession if it could be proved satisfactorily that the said confession is true, voluntary and corroborated on all material aspects.
It is not a principle of law, but a principle of prudence, that through long judicial experience, has crystallized into almost an inflexible rule that ordinarily a conviction should not be based on a retracted confession without corroboration – State of Maharashtra v. P.K. Pathak, AIR 1980 SC 1224.
Where the confession is extrajudicial (and not judicial), and retracted, the requirement of corroboration by independent witnesses is even more strictly applied – Sakharam v. State of Maharashtra, AIR 1994 SC 1594.
There is no strict rule that a judge should accept a retraction at its word; instead, he should consider all evidence and determine whether the retraction was genuine or an afterthought made to evade the consequences of a genuine confession – Rameshbhai Chandubhai Rathod v. State of Gujarat, (2009) 5 SCC 740.
Whenever corroboration is necessary, it does not have to cover all details of the confession but only provide sufficient substantiation to witness the material facts and participation of the accused in the events – anything more is superfluous, while anything less will be ineffective.

In fact, there is no need for the confession to lose all its evidential weight after retraction.

VII. CORROBORATION: RULE OF LAW OR RULE OF PRUDENCE?

This question constitutes the analytical core of the subject and has received sustained judicial attention. Two competing formulations appear in the case law.

A. The View That Corroboration Is a Matter of Prudence, Rather than of Law

The prevailing and more settled view is that there is no statutory requirement of corroboration in relation to an extra-judicial confession: corroboration is simply a matter of judicial prudence, which developed as a precaution against the possibility of fabrication. According to this view, a court can, in an appropriate case, convict on the basis of the confession alone without independent corroboration, as long as the confession itself satisfies the tests of voluntariness, truth and credibility of witnesses discussed above. This is the view followed in State of Rajasthan v. Raja Ram and Sansar Chand v. State of Rajasthan, and is in consonance with a general principle of evidentiary law with regard to both accomplice evidence and solo witness evidence: under Indian law, there is no requirement of a specified quantity or kind of corroborative evidence in order to secure a conviction; what is required is only that the evidence, whatever its origin, is entirely credible.

B. Viewpoint of Corroboration Being a Requirement which has Developed into a Rule

A cautious approach to this form of authority, particularly when it comes to retracted confessions, can be understood by considering the notion that corroboration has “become recognized as a rule of law” due to the fact that judicial systems have utilized this idea over time (State of Maharashtra v. P.K. Pathak). To put it another way, corroboration should be seen as a matter of common sense and not as an obligation to be observed, however, the way it is applied by the courts indicates that this notion is regarded as more of requirement than just common sense.

C. Reconciliation

The apparent conflict between the two lines of authority is reconciled, upon closer examination, by acknowledging the fact that each operates within a distinct position in terms of reliability and not based on conflicting laws:

When there is an unwithdrawn extra-judicial confession and is proven through undisputed and disinterested evidence, and is also coherent with other pieces of evidence within the prosecution’s case, the law treats corroboration merely as a matter of prudence and conviction can be based on such confession alone.
If there is a withdrawal of the confession or when the credibility of the witness is legitimately called into question or if the confession is part of a circumstantial chain of evidence, then the application of corroboration is done strictly as a means of protecting the courts from convicting someone on the basis of such confession without being able to provide corroborative evidence – but without actually turning it into a rule of law.

This reconciliation also makes clear the reason why the standard of corroboration itself is not particularly stringent: according to Madan Gopal Kakkad v. Naval Dubey, 1992 SCC (3) 204, it is not necessary to provide separate and independent corroboration for every fact stated in the confession; all that is required is substantial corroboration of the essential veracity of the confession as well as its key details in such a manner that a reasonable person may be convinced of its genuineness.

VIII. EVIDENTIARY VALUE OF CONFESSIONS BEFORE DIFFERENT CLASSES OF RECIPIENTS

Court decisions on how much weight to assign to an extra-judicial confession depend on the identity and relationship of the person to whom the confession is made, as such a relationship affects not only the spontaneity but also the possibility of fabrication of the confession itself.

A. Confessions Made Before Kin

A confession made before a close family member – parent, sibling, and partner – is likely to carry more weight, as from a psychological perspective, there is a higher chance that an accused will confess to a family member that he trusts and feels pity for. Nonetheless, courts are aware that relatives do not always provide true and accurate information, since, on the one hand, they may have a wish to defend the reputation of their family or to pass the responsibility away, while, on the other hand, relatives who have had problems with the accused may wish to fabricate a confession in order to take revenge on him or her. The court comprehensively examines the case and analyzes the influence of kinship on the credibility of the confession.

B. Confessions by Accused Persons Made to Their Friends or Acquaintances

Confessions made to intimate friends are considered in the same manner as confessions made to relatives – the inherent relationship of confidence makes the act of confessing probable, but the courts consider the nature of the friendship and its duration, whether the friendship was previously known to exist (and not merely claimed) and whether there was any reason at all for the accused to choose such a friend as his confidant after the commission of the crime.

C. Confessions Made Before Village Elders, Panchayat Members, and Community Leaders

A common trend in rural criminal cases is when the accused makes a confession in front of a village elder, panch or some other respected individual in the community – sometimes in a meeting arranged for the resolution of the dispute via community means before police intervention. The courts have generally been quite receptive to such confessions, in view of the standing and moral integrity of the individual making the community proceedings likely, especially where the confession is prior to any police intervention, and thus not engineered by the investigation agency. However, where such witnesses prove to be part of the group of the complainant, or where the very existence of the panchayat meeting is questionable, the suspicion is no different than that attached to other categories of witnesses.

D. Acknowledgments Made to Private Persons Generally

If a confession is made to a person who does not belong to the family circle, personal circle or who is not a person of recognized standing in the society, that is, where the confession is made to a stranger, necessarily and therefore needs much more scrutiny than a confession made to a person with whom one has relationship of trust as in Kashi Ram vs. State of Rajasthan where confession made before a person unknown and who is having no social value to account for the confession is regarded as unbelievable and a conviction is not based upon such confessions.

E. Confessions Made Before Public Servants

Confessions made in front of officials who are not police officers—like revenue officers, bank officials conducting internal investigations, or government officials in the course of their jobs—are not excluded under Section 23 of the BSA (Sections 25–26 of the Act of 1872), as the ban is applicable only to police officers and persons held by police. Such confessions are treated as ordinary extrajudicial confessions, subject to the same tests for credentials and voluntary conditions. However, courts are aware of the fact that the authority of public servants over the offender could potentially affect the process, since there exists a possibility of the legislation providing for the offender being pressured or influenced by the authority of the public servant. In cases, where the confession is formalized and signed in the presence of the public servant acting in the course of his/her official duties, the document, once proved, would be significant evidence as it would be impartial and in the handwriting of the offender.

This aspect must be highlighted to the effect that a Magistrate who is not authorized to take down confessions from any person according to the pertinent provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023, or even if he is authorized but takes down his confession without following the required procedure, then he will be considered just like an ordinary citizen for the purpose.

IX. COMPARATIVE ANALYSIS OF LEADING JUDGMENTS

The table below shows the best Supreme Court judgments on confessions made before police along with their pertinent facts and rulings.

Case & Citation	Court / Year	Key Facts / Context	Ratio Decidendi / Principle Laid Down
Pakala Narayana Swami v. Emperor, (1939) 66 IA 66 (PC)	Privy Council, 1939	Key foundational case dealing with definition of the term ‘confession’ which is not even defined under Evidence Act/BSA.	For a confession to be valid, it must either contain a clear admission of guilt or mention all relevant facts that can lead to perception of a crime committed; if it includes an alibi as well, it ceases being a confession.
Sahoo v. State of U.P., AIR 1966 SC 40	Supreme Court, 1965	Accused was heard muttering to himself (soliloquy) just after committing the murder that he had ‘finished’ off the deceased.	Additional aspects of making an extra-judicial confession are not as important, because, for instance, soliloquies may also be considered a confession; however, due to its nature it cannot serve as an independent ground for conviction..
Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259	Supreme Court, 1995	Again emphasized the inherent weakness of extra-judicial confessions	Some extra-judicial confessions are known to be weak evidence and therefore, may call for great attention when examined.
Kavita v. State of Tamil Nadu, (1998) 6 SCC 108	Supreme Court, 1998	Conviction depended mainly on an extra-judicial confession.	Conviction can be based on an extra-judicial confession; however, due to its specific nature it must be proved with evidence of the same kind.
State of Rajasthan v. Raja Ram, (2003) 8 SCC 180	Supreme Court, 2003	Prosecution rested its case on extra-judicial confessions made before the relations of the deceased; the High Court had acquitted because it doubted the credibility of the witness.	It is not always true that an out-of-court confession is poor evidence. If a confession is made voluntarily, correctly, and in a sound frame of mind and if the witness who has heard it is assessed to be trustworthy, such a confession can eventually result in a conviction.
Sansar Chand v. State of Rajasthan, (2010) 10 SCC 604	Supreme Court, 2010	Extra-judicial confession made to a co-accused/associate and corroborated by discovery and other evidence.	There is no absolute premise that an extra-judicial confession cannot be solely taken as the base for a conviction; however, as a rule of prudence, the courts must search for some corroboration before acting on the confession.
Madan Gopal Kakkad v. Naval Dubey, 1992 SCC (3) 204	Supreme Court, 1992	Dealt with the extent of corroboration necessary for a confession to be acted upon.	There is no fixed requirement that the extra-judicial confession needs to be corroborated at all times; the law only requires that there will be some backing to the confession.
Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403	Supreme Court, 2012	Propounded a framework for appreciation of extra-judicial confessions judicially.	Before the court reaches a conclusion based on the extra-judicial confession, it must ensure that it gives confidence to the court and it is backed up by other pieces of proof of the prosecution. If there are any major inconsistencies or improbabilities in the confession, it must be disregarded altogether.
Rameshbhai Chandubhai Rathod v. State of Gujarat, (2009) 5 SCC 740	Supreme Court, 2009	Accused had withdrawn an extra-judicial confession in court..	There is no categorical rule which says that retraction will not be accepted; but the court must analyze all the evidence provided and reach an independent conclusion on the authenticity of the retraction.
Sakharam v. State of Maharashtra, AIR 1994 SC 1594	Supreme Court, 1994	Dealt with the case of retracted extra-judicial confession as the main evidence.	The extra-judicial confession can be considered as valid evidence only when it is supported by the testimony of independent witnesses and the court believes in its truthfulness and voluntariness.
State of Maharashtra v. P.K. Pathak, AIR 1980 SC 1224	Supreme Court, 1980	Dealt with a retracted extra-judicial confession as the main evidence.	Due to the principle of prudence and caution – which has ‘become a law unto itself’ – a retracted confession cannot be the sole basis of conviction unless corroborated on material points.
State of Maharashtra v. Kasab, (2012) 9 SCC 1	Supreme Court, 2012	Dealt with retracted judicial confession but the principles laid down by the Court are of general applicability.	Confession can be used if the judge is convinced it is trustworthy; there is no unbreakable rule precluding conviction based on a retracted confession – it more ideal to seek corroboration.

X. DIVERGENT JUDICIAL APPROACHES AND THEIR RECONCILIATION

A close review of the case law reveals at least three points of apparent difference which the Supreme Court has, over time, succeeded in substantially harmonizing.

A. “Weak Evidence” vs “No Presumption of Weakness”

Older decisions such as Balwinder Singh v. State of Punjab and Kavita v. State of Tamil Nadu have described extra judicial confession in clear terms as weak evidence which needs to be handled with extreme care and caution. In the case of State of Rajasthan v. Raja Ram, without overturning these decisions, it has been made clear by the Court that no presumption of weakness can be started from the beginning and the weight that would be given to the confession would depend upon the particular facts of each case with the credibility of the witness being the principal criterion. The reconciliation in this case would lie in the realization that “weak evidence” is not a substantive rule reducing the evidentiary strength of confession, but only a caution with regard to the approach that is to be adopted to such evidence.

B. Corroboration as Prudence versus Corroboration as Near-Law

In the case of decisions involving unqualified, credible confessions (Raja Ram; Sansar Chand), corroboration is treated as prudence, whereas in decisions involving retracted confessions (P.K. Pathak; Sakharam), the requirement of corroboration can be said to come close to a rule of law. In the first case, the reason being the greater risk associated with confessions involving retraction

C. Amount of Corroboration Needed

A related area of seeming conflict is whether a sufficient degree of corroboration is needed. In some decisions, the requirement of corroboration appears to be phrased in rather broad language: namely, that the confession must be ‘corroborated in material particulars’. Taken literally, this would appear to indicate a highly stringent requirement of corroboration. But as made clear in the decision in Madan Gopal Kakkad v. Naval Dubey, this is not the right way to interpret the prudence rule – the rule of prudence requires corroboration, but not in relation to every matter referred to in the confession. Rather, the corroboration required is merely a general one sufficient to convince a prudent person of the truth of the core of the confession – the involvement of the accused in the crime.

D. Fundamental Similarity

This apparent variety of cases can be explained by the fact, that there is one constant set of relevancies in each of these cases: (i) whether your confession was made voluntarily; (ii) if the confession is true and consistent with any other evidence; (iii) whether the person who made the confession is credible and has no motive for telling untruth; (iv) what is the need for external proof and which step of investigation can lead to ruling out or provoking any doubt about the confession.

XI. CONCLUSION: PREVAILING LEGAL POSITION AND PRACTICAL CONSIDERATIONS

A. The Prevailing Legal Position

From the synthesis of the statutory provision of the Bharatiya Sakshya Adhiniyam, Act of 2023 and the case law governing this act previously the following legal position is accepted:
An extra-judicial confession is a verbal or written statement made by the accused person outside the proceedings of the court which admits the guilt or essentially all the facts constituting a crime; while communication with another person who does not have to be a witness is common it is not a must.
An extra-judicial confession can be used as evidence only when it is not proved that the confession was influenced by persons in positions of authority (section 22 of the B.S.A), when the confession is not made to a police officer while being in custody and not made before a magistrate (section 23 of the B.S.A).
There is no presumption of law saying that extra-judicial confession is weak; the validity of the confession depends on the fact whether this confessions is voluntary and truthful as well as consistent with the other pieces of evidence.
Extra-judicial confession can be the only ground for conviction if it satisfies these conditions; in this case, corroboration is a matter of judgement rather than a requirement of the law
Where there is a retraction of the confession, the principle of corroboration is applied by courts with much more rigour so that, as a matter of settled practice, a retracted confession is not normally relied upon without some independent corroboration of material facts – although, even here, no absolute principle prevents conviction in the exceptional case where the court is satisfied of the truth and voluntariness of the confession.
Where corroboration is required, it does not have to cover all the details of the confession; sufficient corroboration of its general veracity and of the guilt of the accused is enough.
The identity of the person to whom the confession is made – relative, friend, village elder, private person or public official – is important in evaluating its probability.

B. Practical Considerations for the Prosecution

Ensure that there are several witnesses available to authenticate the confession and offer corroborative evidence to use against the evidence in question.
Make sure the confessor made the confession promptly, which was to be stated clearly in the evidence presented before the court, for one of the biggest obstacles found by courts in a case concerns the delay in the process.
Introduce strong and independent evidence that can establish the absence of any animus and provide a reasonable explanation why the accused confessed to the specific witness.
In case the confession is a part of circumstantial evidence, one ought to ensure that all parts of the circumstantial evidence are vouchsafed by firm evidence.
In case one anticipates or has checked the issue of retraction, one ought to have collected independent evidence needed to buttress the confession made by the accused like items recovered, medical evidence, the motive, and behavior.

C. Practical Considerations for the Defence

Examine and cross-examine on the delay between the supposed confession and when it was first communicated to the police or investigating authority, and the lack of any contemporaneous documentation.
Question the relationship between the accused and the witness for any undisclosed hostility, competition, or motivation to concoct a confession, and point out any inconsistency between the statement made by the witness during the course of the investigation and the testimony provided in court.
Cross-examine on the naturalness of the confession – whether, in light of all the facts and circumstances surrounding the confession, it was natural for the accused to confess to that individual at that place and time.
If the confession is relied upon as circumstantial evidence, challenge the prosecution’s reliance on the admission by pointing out that an unreliable confession cannot be considered a link in an unbroken chain of events and the prosecution has to prove each other link beyond a reasonable doubt.
Where there is a possibility of retraction, make sure that it is put on record at the earliest opportunity (through the Section 351, BNSS statement).

D. Closing Observations

The law concerning confessions made outside the judicial process constitutes a balanced judicial compromise between two conflicting considerations: first, the acknowledgment that a voluntarily-made true confession is one of the most powerful pieces of evidence before the Court; and second, the danger posed by the lack of procedural safeguards surrounding an extra-judicial confession, which may easily lead to the fabrication, exaggeration, or forced admission of facts. While the Bharatiya Sakshya Adhiniyam, 2023 has chosen to keep rather than revise this area of law, it can safely be assumed that all the rich body of judicial precedents that have been developed over the past more than hundred years under the Indian Evidence Act, 1872 – starting from Pakala Narayana Swami to Sahoo, Raja Ram, Sansar Chand, and Sahadevan – will still govern the approach of the Indian courts to this highly sensitive kind of criminal evidence.

TABLE OF CASES

Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259
Kashi Ram v. State of Rajasthan (Rajasthan High Court)
Kavita v. State of Tamil Nadu, (1998) 6 SCC 108
Madan Gopal Kakkad v. Naval Dubey, 1992 SCC (3) 204
Pakala Narayana Swami v. Emperor, (1939) 66 IA 66 (PC)
Queen Empress v. Babulal (Privy Council)
Rameshbhai Chandubhai Rathod v. State of Gujarat, (2009) 5 SCC 740
Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403
Sahoo v. State of U.P., AIR 1966 SC 40
Sakharam v. State of Maharashtra, AIR 1994 SC 1594
Sansar Chand v. State of Rajasthan, (2010) 10 SCC 604
State of Maharashtra v. Mohd. Ajmal Amir Kasab, (2012) 9 SCC 1
State of Maharashtra v. P.K.

SELECT STATUTORY REFERENCES

Bharatiya Sakshya Adhiniyam, 2023 – Sections 15, 22, 23, 24, 25, 26
Indian Evidence Act, 1872 (repealed) – Sections 17, 24, 25, 26, 27, 30, 31
Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 176,

– END OF RESEARCH PAPER

Criminal Defense Lawyer

Author

Gyan Prakash

EXTRA-JUDICIAL CONFESSION: