DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

SESSION: 2021-
2026

LAW OF EVIDENCE

FINAL DRAFT

Submitted for the project work undertaken in the partial fulfilment of B.A. LL.B. (Hons) 5 years integrated
course at Dr. Ram Manohar Lohiya National Law University, Lucknow.

EXTRA JUDICIAL CONFESSIONS WITH FOCUS ON SITUATIONS THAT

RENDER THE CONFESSION INVALID

SUBMITTED TO- SUBMITTED BY-

Dr. VIPUL VINOD Kritin Bahuguna
ASSISTANT PROFESSOR ENROLMENT NO.-210101075
(LAW) B.A LL.B. (HONS.)
Dr. Ram Manohar Lohiya National Law University 5th SEMESTER, SECTION-A
 TABLE OF CONTENTS

ACKNOWLEDGEMENT ................................................................................................. 3

DECLARATION ................................................................................................................ 3

RESEARCH METHODOLOGY ...................................................................................... 4

INTRODUCTION .............................................................................................................. 4

SCOPE OF AN EXTRA JUDICIAL CONFESSION ....................................................... 5

SITUATIONS THAT RENDER THE CONFESSION INVALID .................................. 7

CONCLUSION ................................................................................................................. 11

BIBLIOGRAPHY ............................................................................................................. 12
 ACKNOWLEDGEMENT

I have taken a lot of efforts in compiling this project. However, it would not have been possible
without the kind support and help of many individuals and organisations. I would like to
extend my sincere thanks to all of them.

I express my immense gratitude to Dr. Vipul Vinod for providing me with his exemplary
guidance, support and encouragement throughout the course of this project.

I would like to extend my deepest gratitude to my parents and friends for their continuous
words of encouragement and support which helped me in completing this project.

Finally, This project is a result of my efforts combined with all the means and environment
that has been provided to me by Dr. Ram Manohar Lohiya National Law University,
Lucknow and its authorities and I am thankful to them.
 DECLARATION

I hereby declare that the project ‘Extra Judicial Confessions with focus on situations that
render the Confession Invalid’ submitted by me to Dr. Ram Manohar Lohiya National Law
University, Lucknow, Uttar Pradesh in partial fulfilment requirement for the award of the
degree of B.A.L.L.B(Hons.) is a record of bonafide project work carried out by me under the
guidance of Dr. Rajneesh Kumar Yadav.

I further declare that the work reported in this project has not been submitted , and will not
be submitted either in part or in full, for the award of any other degree or diploma in this
institute or any another university.

Kritin
Bahuguna ENROLMENT
NO.-210101075
B.A LL.B.
(HONS.) 5th SEMESTER,
SECTION-A
 RESEARCH METHODOLOGY

The research is strictly doctrinal, the sources being exhaustive and limited to the internet,
books, journals and newspaper articles, although reference to all of the aforementioned
sources may not be necessarily made. For the presentation of information in the correct
perspective, due care has been ensured.

INTRODUCTION

The word confession appears for the first time in Section 24 of The Indian Evidence Act, 1872.1
Confession has not been defined, but Justice Stephen defined confession as the statement
made by the accused in a criminal case where he/she admits to the commission of a criminal
offence in clear terms or by admitting substantially all the facts that constitute the offence.2
Confession is admittance of one’s own guilt so it would not apply to situation were the person
making the statement is admitting to commission of a crime by someone else. Confession
can be made to police office, to a judge or to any other person.

Confession made to a police officer is inadmissible due to the application of Sections 25 3 and
264 of the Indian Evidence Act, 1872. For a valid confession, the admittance to guilt or all
facts that constitute the offence should be made to a magistrate in accordance with the
requirements mentioned in Section 164 CrPC.5 This admission should come from a free will
of the accused and has to be made in clear terms.6

Confessions made to strangers who are not in their judicial capacity or in police authority,
are extra judicial confessions. In such confessions, the individual who heard the confession
has to come to the court as a witness and depose the statement that the accused made; which
the witness thought to be confession of guilt. Though it would be preferable for the court that
the witnesses repeat the words of the accused as they were said by the accused themselves,
however that is not possible in practical sense. 7

1
The Indian Evidence Act 1872, s24.
2
Dilpal Singh v State of Assam (1986) 1 Gau LR 76 (DB).
3
The Indian Evidence Act 1872, s25.
4
The Indian Evidence Act 1872, s26.
5
The Code of Criminal Procedure 1973, s164.
6
Ram Lal v State of H P 2018 SCC OnLine SC 1730.
7
KP Shivaji v State of Andhra Pradesh (1992) 1 Andh LT 21.
 The court cannot place an exception on the witness to say the exact same words as used by
the accused. This would dilute the need for accepting extra judicial confession. To use
extrajudicial confession as admissible form of evidence in a trial, the court decided that the
witness should to best of her ability try to say what was said by the accused, however it will
not work to the detriment8 of the witness or the qualitative role of the statement if exact words
are not used.

This is because the court will have a duty to look at the evidence present and decide on the
qualitative value of the extrajudicial confession in light of the evidence available before the
court. Further to prevent prejudice and mistakes in the trial, the court gives very less value
to an extrajudicial confession. This is due to the fact that in cases of extrajudicial confession,
there is a huge possibility of prejudice to the accused, and also giving undue weightage would
go against public policy and the basic tenants of judicial system which is accused centric. 9

8
Vinayaka Shivajirao Pol v State of Maharashtra 1998 SCC (Cri) 610.
9
Ibid.
 SCOPE OF AN EXTRA JUDICIAL CONFESSION

It is also necessary to note that the confession does not change it nature only because a person
holds a position in power or authority. The fact that an individual holds an post which would
change the nature or type of confession, is not enough to cause the change in type of confession.
The person who makes the confessional statement must be aware of the fact that the person to
whom the statement is being made or the person overhearing the confession is a person clothed
under that authority and the confession should be due to the fact that person is under that
authority.

Thus in case where a statement was made to a police officer, however the police officer was
undercover and did not show any sign which would make the accused believe that the person
was clothed under the authority of a police officer.10 The court in this case held that the
confession would not be hit by Sections 25 or 26 of the Indian Evidence Act, as the time at
which the accused made the statement to the officer was when the accused was not aware that
the person was actually a police officer. Thus as in the case where the person was not aware of
the authority of the person, it cannot be said that the person gave confession due to the pressure
that is exerted by an officer in their official capacity. Such a confession will be treated as
extrajudicial confession and the procedure for the admittance of the same will be followed.
Thus we can understand that it is the legal authority that the person in position has which will
play a greater role than mere post of the person. 11

Even though both of them fall into the category of confessions, there is difference between
them which is as big as a difference that can be imagined. The principle difference between
them arises and is ingrained in our laws in the Criminal Procedure Code. Section 164 of the
same Code has laid down the extensive difference them.

The difference between them can be put into different headings. The first heading is the
definition of the two. As the name suggests, extra judicial confession are basically those kind
of confessions that are made to people who are not authorised by the law. So basically if a
confession is made to a police officer during cases’ investigation, it will come under the
principle of extra judicial confession as section 25 and section 26 of the Evidence Act

10
Jadumani Khanda v State (1993) 75 Cut LT 652.
11
Harrihar Park v State 1985 Cr LJ 432.
envisages.12 While on the other hand, judicial confessions are fully legal in the sense that they
are made to a magistrate who is empowered under law that is section 164 of the Criminal
procedure code.

The next thing in the difference comes is how to prove and what is the evidentiary value of
such confessions as compared to judicial confessions. Judicial confessions do not require any
witnesses to be called to prove the confession for obvious reasons that it is made to a magistrate.
While on the other hand, extra judicial confessions, the proving of which will require a witness
and that person will be the one to whom the extra judicial confession was made. 13

Usually the confessional statements which are made to the magistrate that is the judicial
confessional statements are good proof and can be relied upon if the court is of the onion that
the confessional statement that was made was true and voluntary and without and coercion or
pressure.14 On the other hand, extra judicial confessions are not the best type of evidence and
cannot be relied upon on their own and to convict someone purely on the basis of extra judicial
confession would be nothing short of a travesty and would be an absolute and gross injustice
to the accused.15

The most important distinction between these two kinds of confessions which is important from
accused’s perspective is that while judicial confessions can be relied on their own meaning
thereby that the an accused , bless his soul, can be found guilty and even be hanged till death
just purely on the basis of a judicial confession, while the extra judicial confession if made can
never be used by the court to convict someone as it is a type of hearsay evidence but have just
a bit more evidentiary value than hearsay evidence and someone can be convicted if there is
some more evidence regarding the truth of the extra judicial confession. 16

12
Makhan Singh v State of Punjab AIR 1988 SC 1705.
13
Prasanata Kumar Sahu v State 1999 Cr L J 969.
14
Sahoo v State of UP AIR 1966 SC 40.
15
Prabhakar v State 74 Bom LR.
16
Shivam Karam Paswani v State of Maharashtra AIR 2009 SC 1692.
 SITUATIONS THAT RENDER THE CONFESSION INVALID

The primary objective of this research paper of the Analysis of extra judicial confessions under
the Indian Evidence Act with a focus on situations that renders the confessions invalid.

An extra-judicial confession has been defined to mean “a free and voluntary confession of guilt
by a person accused of a crime in the course of conversation with persons other than judge or
magistrate seized of the charge against himself”. Extra-judicial confessions are those which
are made by the accused elsewhere than before a magistrate or in court. It is not necessary that
the statements should have been addressed to any definite individual. Extra-judicial confession
can be accepted and can be the basis of a conviction if it passes the test of credibility.

A common theme throughout the jurisprudence with a few exceptions on extra judicial
confessions has been that it is termed as a “weak piece of evidence”. 17 The Courts have
hesitated in assigning much weight to extra judicial confessions and have only admitted extra
judicial confessions on record when the two pronged test of a “voluntary and a truthful
confession is met”. 18 It follows that a confession would be voluntary, if it is made by the
accused in a fit state of mind and if it is not caused by any inducement, threat or promise which
has reference to the charge against him proceeding from a person in authority. The Supreme
Court in a recent judgment19 while echoing its past position has stated that “If the Court is
satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the
conviction”.

The law is clear that a confession cannot be made against an accused person unless the court is
satisfied that it was voluntary. If the facts and circumstances surrounding the making of a
confession appears to cast a doubt on the veracity of voluntariness of the confession, the court
may refuse to act upon the confession, even if it is admissible in evidence.20

For instance, in a case of rape and murder, where the confession was made to the witness when
the accused was in the custody of the village chowkidar, the confession was termed to be under

17
Makhan Singh v State of Punjab AIR 1988 SC 1705.
18
Ratan Gond v State of Bihar 1959 AIR 18.
19
Ram Lal v State of HP 2018 SCC OnLine SC 1730.
20
Dagdu v State of Maharahstra AIR 1977 SC 1579.
duress and threat. Such confession was termed to be non-voluntary.21 In an another case where
a serving sepoy in a written statement made to his supervisors stated that he had killed his wife;
the court along with vagueness of the facts, stated that as the officers were biased and hence
did not allow for the extra confession as evidence.22 Therefore, if a confession coming from an
accused is not given voluntary and under any sort of duress, such confession would be rendered,
directly invalid.

However apart from the two pronged test, a larger determining factor that has rendered extra
judicial confessions invalid has been the credibility and veracity of the witness.23 The factual
setting of the confession is often relied upon to determine the validity of the confession. Extra
judicial confessions have only been relied upon, if the evidence about the same comes from the
mouth of the witnesses who appears to be unbiased and does not have harmful intentions
towards the accused.24

To assess the nature of an extra judicial confession so as to determine its validity, the Courts
throughout various cases have laid down the following tests:

• Is the witness proving the confession generally credible? For instance in a case 25 where
the accused made a confession of raping a killing a minor girl to a taxi driver who used
to park at the same place as the accused, the court was of the opinion that a confession
of such sort could not be made so casually. The court stated that “In our view this piece
of evidence does not inspire confidence as to the credibility of the witness. The choice
of a person to confess cannot be effected just like that”. Often the credibility of the
witness can be used to invalidate the confession. The setting in which the entire
confession happens is of prime importance.
• Is the relation with the accused such that the latter could confide in him? The
relationship between the accused and the witness serves to identify whether the
accused would confide the crime to the witness. So for instance if a confession is made
to a random by stander, the courts would be more unfavourable to admitting such a
testimony as the chances of person confessing a crime to an unknown person are

21
Bharang Kandula v State of Jharkhand 2009 Cr LJ 1022.
22
Vinayaka Shivajirao Pol v State of Maharashtra 1998 SCC (Cri) 610.
23
Mulk Raj v State of Uttar Pradesh 1960 AWR (HC) 18.
24
Dilpal Singh v State of Assam (1986) 1 Gau LR 76 (DB).
25
Kamlesh v State of Rajasthan RajHC 2018.
 unlikelu.26 With regard to family members of the accused, the courts are more
favourable in allowing the evidence to be admitted as the relation is such that the
accused would confide. However, in a case27 where the confession was made to person
with whom the accused had an intimate relationship with the court, did not allow such
confession to be on record. Thereby the person to whom the confession is made
becomes extremely essential.
• Is there any motive for the witness to implicate the accused falsely? For instance, in a
case28where a husband was alleged to have killed his wife had confessed it to his father
in law, along with some discrepancy and the late submission of the alleged letters the
court was of the opinion that the relation of the accused with the witness was such that
there could be a motive to falsely implicate the accused hence the testimony was not
taken on record. It is of critical importance to assess the relation of the accused to the
witness as there are chances that the witness might be trying to falsely implicate the
accused.
• Is the confessional statement consistent with other facts and circumstances on
record.29As stated extra judicial confessions are weak piece of evidence and as long as
an extra judicial confession does not corroborate with the surrounding circumstances
and evidence on record, such a confession would not be sufficient against the accused.
Therefore, in every case the confession has to be consistent with facts for it to hold
ground in the court.30

In situations where the courts have found that the extra judicial confession have not met the
aforementioned test, then such evidence is found to be unreliable.

Few instances where the courts have termed extra judicial confessions as unreliable are:

• When the confession made was neither reduced to writing nor produced the accused
before the police. Moreover, the information was given to the police after several
hours. Such confession has been termed as unreliable31

26
Lakhanpal v State of Madhya Pradesh 1979 BLJ (NOC) 19 (SC).
27
Panna Ram and three Ors v State of Rajasthan 1983 Cr LR (Raj) 685.
28
Prasanata Kumar Sahu v State 1999 Cr L J 969.
29
Prabhakar v State 74 Bom LR 299.
30
Sahoo v State of UP AIR 1966 SC 40.
31
Chattar Singh v State of Haryana AIR 2009 SC 378.
 • When the confession is made to a person who is a distant relative of the accused has
been found to be unreliable.32
• Where the relation between the deceased and witness is strained therefore it is assumed
that the accused would not go to confess before such a person.33
• When the extra judicial confession is made to a person who is not known to the accused
it is doubtful.34
• When there is lack of a cordial relationship between the accused and the witness, the
confession in such a case is termed to be unreliable.35
• When a confession is just shouted in a public place it would not amount extra judicial
confessiom.36
• Though the courts required the test of exact reproduction of words, the jurisprudence
now has turned towards not requiring such, as the courts have found that this sets the
standard unreasonably high.37

Although to ascertain whether extra judicial confession can be relied upon as evidence or not
largely depends on the peculiarities of each case, the two pronged test along with other
aforementioned tests do serve to assess the reliability of extra judicial evidence. The listed out
instances shed further light how the courts have treated extra judicial evidence.

Thus in case where a statement was made to a police officer, however the police officer was
undercover and did not show any sign which would make the accused believe that the person
was clothed under the authority of a police officer.38 The court in this case held that the
confession would not be hit by Sections 25 or 26 or the Indian Evidence Act, as the time at
which the accused made the statement to the officer was when the accused was not aware that
the person was actually a police officer. Thus as in the case where the person was not aware of
the authority of the person, it cannot be said that the person gave confession due to the pressure
that is exerted by an officer in their official capacity. Such a confession will be treated as
extrajudicial confession and the procedure for the admittance of the same will be followed.

32
Kachhwa v State of Rajasthan 1985 Raj LW 97 (Raj) (DB).
33
Ishwar Singh v State of Rajasthan (1982) 7 Raj Cr C 28 (Raj)(DB).
34
KP Shivaji v State of Andhra Pradesh (1992) 1 Andh LT 21.
35
Harrihar Park v State 1985 Cr LJ 432.
36
Jadumani Khanda v State (1993) 75 Cut LT 652.
37
Shivam Karam Paswani v State of Maharashtra AIR 2009 SC 1692.
38
Jadumani Khanda v State (1993) 75 Cut LT 652.
Thus we can understand that it is the legal authority that the person in position has which will
play a greater role than mere post of the person. 39

For instance, in a case of rape and murder, where the confession was made to the witness when
the accused was in the custody of the village chowkidar, the confession was termed to be under
duress and threat. Such confession was termed to be non-voluntary.40 In an another case where
a serving sepoy in a written statement made to his supervisors stated that he had killed his wife;
the court along with vagueness of the facts, stated that as the officers were biased and hence
did not allow for the extra confession as evidence.41 Therefore, if a confession coming from an
accused is not given voluntary and under any sort of duress, such confession would be rendered,
directly invalid.

39
Harrihar Park v State 1985 Cr LJ 432.
40
Bharang Kandula v State of Jharkhand 2009 Cr LJ 1022.
41
Vinayaka Shivajirao Pol v State of Maharashtra 1998 SCC (Cri) 610.
 CONCLUSION

The focus of this study has been assessing situations that have rendered extra judicial
confessions as invalid. The study has found several such areas where the courts have out rightly
refused to admit any confession that has the slightest bit of taint on it. This is rightly so because
extra judicial confession by their own regard are weak thus the test that is propounded by the
courts is correct in line with comparative jurisprudence.

The extra judicial confession though weak are vital in assessing the crime. A common theme
throughout the jurisprudence with a few exceptions on extra judicial confessions has been that
it is termed as a “weak piece of evidence”. The Courts have hesitated in assigning much weight
to extra judicial confessions and have only admitted extra judicial confessions on record when
the two pronged test of a “voluntary and a truthful confession is met”. It follows that a
confession would be voluntary, if it is made by the accused in a fit state of mind and if it is not
caused by any inducement, threat or promise which has reference to the charge against him
proceeding from a person in authority.
 BIBLIOGRAPHY

Bharang Kandula v State of Jharkhand 2009 Cr LJ 1022................................................... 10,

13
Chattar Singh v State of Haryana AIR 2009 SC 378 .............................................................. 12
Dagdu v State of Maharahstra AIR 1977 SC 1579 ................................................................. 10
Dilpal Singh v State of Assam (1986) 1 Gau LR 76 (DB) ................................................... 6,
10
Harrihar Park v State 1985 Cr LJ 432 ............................................................................ 7, 12,
13
Ishwar Singh v State of Rajasthan (1982) 7 Raj Cr C 28 (Raj)(DB) ...................................... 12
Jadumani Khanda v State (1993) 75 Cut LT 652 ........................................................... 7, 12,
13
Kachhwa v State of Rajasthan 1985 Raj LW 97 (Raj) (DB) .................................................. 12
Kamlesh v State of Rajasthan RajHC 2018 ............................................................................ 10
KP Shivaji v State of Andhra Pradesh (1992) 1 Andh LT 21............................................... 6,
12
Lakhanpal v State of Madhya Pradesh 1979 BLJ (NOC) 19 (SC) ......................................... 11
Makhan Singh v State of Punjab AIR 1988 SC 1705 ......................................................... 4, 8,
9
Mulk Raj v State of Uttar Pradesh 1960 AWR (HC) 18......................................................... 10
Panna Ram and three Ors v State of Rajasthan 1983 Cr LR (Raj) 685 .................................. 11
Prabhakar v State 74 Bom LR 299; Sahoo v State of UP AIR 1966 SC 40 ......................... 8,
11
Prasanata Kumar Sahu vs State 1999 Cr L J 969.................................................................. 8,
11
Ram Lal v State of H.P.,2018 SCC OnLine SC 1730 ........................................................ 4, 6,
9
Ratan Gond v State of Bihar 1959 AIR 18 ............................................................................... 4
Shivam Karam Paswani v State of Maharashtra AIR 2009 SC 1692 ................................... 9,
12
Vinayaka Shivajirao Pol v State of Maharashtra 1998 SCC (Cri) 610........................... 6, 10,
13