Extra-Judicial Confession under the Bharatiya Sakshya Adhiniyam, 2023: Evidentiary Value, Principles in Sahadevan, Proof and Landmark Judgments

An extra-judicial confession is made to nobody in particular, in circumstances nobody recorded, and is proved years later by a witness reciting from memory what he says the accused told him. No procedural safeguard attends it and no document ordinarily records it. It is nevertheless admissible, and convictions are founded on it. The law reconciles these facts by admitting the category and then subjecting each instance to a scrutiny more searching than any other form of confession attracts.

1. Meaning and Admissibility

An extra-judicial confession is a confession made to any person other than a Magistrate or a court. Nothing in the Adhiniyam excludes it. It is admissible provided it clears three hurdles which apply to every confession.

Hurdle	Provision	Effect
It must be a confession	Judicial definition	It must admit the offence or substantially all the facts constituting it. A gravely incriminating admission is not enough
It must not have been caused by inducement, threat, coercion or promise	Section 22	Irrelevant if it appears to the court to have been so caused, the inducement proceeding from a person in authority
It must not have been made to a police officer or in police custody	Section 23	Excluded outright. Such a statement is not an extra-judicial confession for the purposes of admissibility

📖 Pakala Narayana Swami v. Emperor, AIR 1939 PC 47

Held: A 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 a confession. A statement containing self-exculpatory matter which, if true, would negative the offence alleged cannot amount to a confession.

Application: The first question in every extra-judicial confession case. A great many statements deposed to as confessions do not meet this threshold at all.

📖 Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40

Held: A confession need not be communicated to another person. Where the accused, immediately after the killing, was heard uttering words to himself acknowledging what he had done, the utterance was held to be a confession. The essential ingredient is that the statement should be an acknowledgment of guilt; communication to another is not necessary in law.

Application: An overheard soliloquy is an extra-judicial confession. The witness deposes to what he heard, and the ordinary tests of reliability apply.

2. The Governing Principles

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

Held: The Court summarised the principles governing an extra-judicial confession —

(i) it is a weak piece of evidence by itself, and must be examined by the court with greater care and caution;

(ii) it should be made voluntarily and should be truthful;

(iii) it should inspire confidence;

(iv) its evidentiary value increases when it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;

(v) for an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and

(vi) such a statement essentially has to be proved like any other fact and in accordance with law.

Ratio: The leading modern statement, cited in virtually every subsequent decision on the subject.

📖 State of Rajasthan v. Raja Ram, (2003) 8 SCC 180

Held: An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact, and its value depends upon the veracity of the witness to whom it is made. There is no rule of law or of prudence that an extra-judicial confession cannot be the basis of conviction unless corroborated. It is not open to a court to start with a presumption that such a confession is a weak type of evidence; it must be examined on its own merits and in the light of the surrounding circumstances.

Ratio: The counterweight. The weakness is not intrinsic to the category, and a reliable witness deposing to a probable confession may be acted upon.

⚠ How the two decisions fit together

They are not in conflict, and both are regularly cited. Sahadevan describes how extra-judicial confessions ordinarily present themselves — unrecorded, uncorroborated, and deposed to long afterwards — and prescribes caution accordingly. Raja Ram makes clear that caution is not rejection, and that the court must not begin with a presumption against the category. The working position is that the evidence is scrutinised closely, and stands or falls on the reliability of the witness and the probability of the disclosure.

3. To Whom the Confession Was Made

The identity of the recipient is the single most important circumstance, because it determines whether the disclosure was probable at all. A person about to burden himself with a capital admission chooses his listener.

Recipient	Probability	What the court examines
A close relative	High	The relationship, and whether the relative had any reason to depose falsely
A close friend	High	The nature and duration of the friendship
A village elder or headman	Moderate to high	Whether an assembly was convened; whether any pressure was applied, which would attract Section 22
An employer or person of standing	Moderate	Whether the relationship gave the recipient authority over the accused, which may attract Section 22
A fellow prisoner	Low	Whether the witness had an interest in obtaining favour; whether the circumstances of the disclosure are credible
A stranger	Very low	Why the accused would choose such a person. There must be a reason
A person hostile to the accused, or a relative of the deceased	Very low	Whether any confession was made at all. The improbability is considerable
A police officer, or anyone while in police custody	Not applicable	Excluded by Section 23. Not an extra-judicial confession for these purposes

⚠ A recipient who is a person in authority

Where the confession is made to an employer, a village headman, a panchayat or any person the accused could reasonably regard as able to influence the prosecution, Section 22 comes into play. If the disclosure followed any inducement, threat, coercion or promise from such a person having reference to the charge, the confession is irrelevant. In practice, panchayat confessions frequently fail on this ground: the assembly is convened, pressure is applied, and the resulting statement is not free.

4. Proving an Extra-Judicial Confession

The sixth principle in Sahadevan is the one most often overlooked. An extra-judicial confession has to be proved like any other fact. It is not a document, there is no record, and the whole of the evidence is the oral testimony of the person who heard it.

Matter	What must be established	Common defect
That the confession was made	Direct oral evidence under Sections 54 and 55 from the person who heard it	The witness deposes from what a third person told him, which is hearsay and inadmissible
The words used	The substance of what was said, reproduced with reasonable fidelity	A vague deposition that the accused 'admitted the crime', with no account of what he actually said
The occasion	When, where and in what circumstances the disclosure occurred	No explanation of why the accused approached that person at that time
Voluntariness	That no inducement, threat, coercion or promise preceded it	An assembled panchayat, or an employer's interrogation, preceding the statement
State of mind of the maker	That the accused was capable of understanding what he was saying	The confession is said to have been made in a state of extreme agitation or intoxication
Promptness of disclosure by the witness	That the witness reported it at the earliest opportunity	Unexplained delay of days or weeks before the witness came forward
Where reduced to writing	The writing proved under Sections 56 to 60; if electronic, under Sections 57, 61 and 63	A recording tendered without the certificate required by Section 63(4) and the Schedule

Where the confession is contained in a message, a recorded call or a video, Section 15 makes it relevant, since an admission may be 'contained in electronic form'. But relevance is only the first question. The record must be proved under Sections 57, 61 and 63, and where it is tendered otherwise than as primary evidence within the Explanations to Section 57, the certificate prescribed by the Schedule is required, with the hash value in Part A and the expert declaration in Part B.

5. Assessing the Witness

Because the confession exists only in the witness's account of it, the assessment of the confession is in substance an assessment of the witness.

Test	Strengthens the evidence	Weakens it
Independence	The witness has no connection with the prosecution or the deceased's family	A relative of the deceased, or a person under obligation to the investigating agency
Consistency	The deposition matches the statement recorded during investigation	Material improvements between the earlier statement and the deposition
Reproduction	The witness gives the substance of the words in the accused's own idiom	A summary in the language of the charge sheet
Promptness	Disclosed to the police or to others at once	Came forward only after the accused was arrested, or after a long delay
Natural conduct	The witness reacted as a person hearing such a disclosure naturally would	He took no step at all, said nothing to anyone, and continued as before
Relationship with the accused	A relationship explaining why the accused would confide in him	No relationship, no explanation, and no occasion
Absence of enmity	No hostility between the witness and the accused	Prior litigation or enmity, supplying a motive to depose falsely

6. The Chain of Cogent Circumstances

The fourth principle in Sahadevan is where most extra-judicial confessions are won or lost. The evidentiary value increases where the confession is supported by a chain of cogent circumstances. In practice the courts look for material that independently confirms what the confession asserts.

Supporting circumstance	How it corroborates	Provision
Recovery at the instance of the accused	The article described in the confession is found where he said it would be	Proviso to Section 23(2); Section 6(2) for the conduct
Medical evidence	The manner of death described in the confession matches the post-mortem findings	Section 39
Motive	A reason for the accused to act, independently established	Section 6(1)
Last seen together	The accused was with the deceased shortly before the death	Sections 5 and 7
Conduct after the occurrence	Abscondence, concealment, or destruction of evidence	Section 6(2)
Independent presence at the place	The accused established at the scene by other evidence	Sections 5 and 7
Detail independently verified	The confession describes something only a participant could know, and it is independently confirmed	Whichever head the confirming material falls under

⚠ Internal detail is not corroboration

A confession is not corroborated by being circumstantial. Detail that is merely internally consistent, or that corresponds to what was already in the case diary, confirms nothing. The detail becomes corroborative only where it is independently verified — where the confession names a place of concealment and the article is then found there, or describes an injury and the medical evidence confirms it. This distinction decides a large number of extra-judicial confession cases.

7. Comparison with the Other Kinds

	Judicial confession	Extra-judicial confession	Confession of a co-accused
Made to	A Magistrate or a court	Any other person	Made by a co-accused, whether judicially or extra-judicially
Safeguards	Section 183, BNSS — warning, satisfaction, memorandum, audio-video option	None	Those applicable to its own making
Record	A formal record signed by the maker	None ordinarily	As applicable
Status	Substantive evidence against the maker	Substantive evidence against the maker, scrutinised with care	Not evidence against the co-accused; may only be taken into consideration under Section 24
Can it found a conviction alone?	Yes, if voluntary and true	Yes in law, but rarely in practice without a supporting chain	No
Usual line of attack	Non-compliance with the safeguards; continuing police pressure	That the confession was never made, or the witness is unreliable	That the other evidence is insufficient, so the confession is not reached at all
Leading authorities	Shankaria; Pyare Lal Bhargava	Sahadevan; State of Rajasthan v. Raja Ram	Kashmira Singh; Haricharan Kurmi

8. The Position in Summary

It is admissible. No provision excludes it, provided it is a confession, is not hit by Section 22, and was not made to a police officer or in police custody.
It is substantive evidence against its maker, and a conviction may in law rest upon it alone.
It is scrutinised with greater care than any other confession, because no safeguard attended its making and no record preserves it.
It must be proved like any other fact, by direct oral evidence from the person who heard it, and where reduced to writing or recorded electronically, in accordance with the rules governing documents and electronic records.
Its value depends on the veracity of the witness and on the probability of the disclosure having been made to that person at that time.
It gains greatly from a chain of cogent circumstances, and independently verified detail is the strongest form of support.
Against a co-accused it is not evidence at all, and Section 24 permits only that it be taken into consideration after the other evidence has been found sufficient.

9. Related Topics and Provisions

Topic or provision	Connection
Judicial and Extra-Judicial Confession	The comparison between the two kinds, and the procedure under Section 183 BNSS
Confession — Meaning, Nature and Evidentiary Value	The definition of confession and the weight of each kind
Voluntary and Involuntary Confession	Section 22, which frequently defeats a panchayat or employer confession
Retracted Confession	The additional caution where an extra-judicial confession is also retracted
Confession of Co-Accused — Section 24	The status of an extra-judicial confession made by a co-accused
Substantive Evidence and Corroborative Evidence	What amounts to corroboration in law
Sections 54 and 55, BSA	Oral evidence, and the requirement that it be direct
Sections 57, 61 and 63 and the Schedule, BSA	Proof of a confession contained in electronic form