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CASE NO.: Appeal (crl.)  242 of 2005

PETITIONER: Sivakumar                                                                

RESPONDENT: State by Inspector of Police                                     

DATE OF JUDGMENT: 08/12/2005

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

       This appeal is directed against a judgment and order dated 24.6.2004  whereby and whereunder the appeal filed by the Appellant herein against a  judgment of conviction and sentence dated 30.6.1997 passed by II  Additional Sessions Judge, Coimbatore Division in Sessions Case No. 197  of 1996 was dismissed.

       The Appellant, herein and the deceased Senthil were relatives as well  as friends.  Relationship of parties is not in dispute.  Nataraj Gounder (PW- 1) was the brother-in-law of the deceased whereas Radhakrishnan (PW-2)  was his brother.  The deceased, however, was living with his mother as well  as his brother (PW-2).  He indisputably was addicted to drinks.   

       At about 11.00 a.m. on 17.9.1995, PW-1 while standing in his Kalam  had seen the Appellant, one Ravikumar (PW-7) and the deceased going  together.  At about 4.30 p.m. on the same day, he came to learn that the body  of the deceased was lying near a Tea Stall belonging to one Rathinammal.   PWs.-1 & 2 went there and found Senthil dead.  PW-1 lodged a First  Information Report whereupon a case under Section 174 of the Indian Penal  Code was registered.  One Dr. Jothi Arunachalam (PW-11) conducted  autopsy on the dead body of the deceased and inter alia found a circular  penetrating wound = cm medial to right nipple.  He opined that the injury  might have been caused by an air gun like M.O.I.  He further found that the  injury was due to profuse haemorrhage and shock due to penetrating injury.   The Post mortem report was marked as Ex. P-11.   

       The Appellant together with two others, namely, Ravikumar and  Murugaraj thereafter went to the house of Nataraj (PW-6) at Palghat in the  State of Kerala and stayed there for a few days.  The Appellant at about 7.00  p.m. on 29.9.1995 visited the office of the Village Administrative Officer at  Servaikaranpalayam.  He made an extra judicial confession of his guilt   wherein he stated that the firing of the shot took place when the deceased  had allegedly stated, "what son-in-law you are going to shoot me.  If you  want you can shoot.  I can see you after you shoot."  The said extra-judicial  confession was marked as Ex. P-3.  The  Appellant thereafter was handed  over to the Inspector of Police (PW 14) by the said Village Administrative  Officer (PW-5) along with the said extra-judicial confession.  He was  interrogated by the Inspector of Police whereupon he allegedly made  confession, leading to recovery of the air gun from Pappannan Thottam  canal.  The said air gun was sent to Forensic Sciences Department, Madras  and was examined by one Rajan (PW-9).  It was found to be in working  condition.  P.W. 9 opined  "it is a 0.22/5.5 mm of caliber rifle on test firing.   It was found to be in working condition.  The muzzle velocity of the pellet  from the above Air Rifle is about 400 feet per second.  As per T.S.R. 991

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Annexed to Schedule II under Arms Rules, 1962, the Air Rifle was found to  satisfy the test specified therein i.e., the pellets did not penetrate 1" thick  deal wood plank at the range of five feet.  If a human body is shot by this  kind of Air Rifle in a close range, there is every chance to occur death".

       A chargesheet was filed against the Appellant for commission of an  offence under Section 302 of the Indian Penal Code.  The prosecution in  support of its case examined 14 witnesses.  The learned Sessions Judge upon  consideration of the evidences brought on record and in particular the  depositions of PWs-1,2,5,6,7 and 12 found the Appellant guilty of  commission of offence under Section 304, Part II of the Indian Penal Code  and sentenced him to undergo rigorous imprisonment for five years.

       The Appellant herein aggrieved by and dissatisfied with the said  judgment of conviction and sentence preferred an appeal before the High  Court which by reason of the impugned judgment has been dismissed.   

       Mr. A.T.M. Sampath, learned senior counsel appearing on behalf of  the Appellant, urged that the prosecution cannot be said to have proved the  guilt of the Appellant who was convicted only on the basis of purported  circumstantial evidences. The learned counsel contended that the  circumstances against the Appellant were not such which could be said to  have completed all links in the chain inasmuch as the ownership of the air  gun was not proved.  The pellets which were noticed by the autopsy surgeon  in the dead body of Senthil had not been removed nor the recovery of the air  gun can be said to have been made in accordance with law.  It was further  submitted that the purported extra-judicial confession which was was  recorded by a person not authorized therefor in view of Rule 72 of Criminal  Rules of Practice (CRP) in terms whereof a village magistrate is prohibited  from recording the extra judicial confession or statement whatever made by  an accused person after the police investigation has begun.

       Mr. Subramonium Prasad, learned counsel appearing on behalf of the  Respondent, however, supported the judgment contending that the  circumstantial evidences against the Appellant had been fully proved in view  of the fact that: (i)     he was last seen with the deceased;   (ii)    his conduct in leaving the place of occurrence and going to the State  of Kerala for a few days; (iii)   extra-judicial confession; and  (iv)    recovery of air gun at his instance from Pappannan Thottam canal.

       The High Court in its judgment relied upon the following  circumstances:

(i) Evidence of P.W. 1 that he saw Senthil along with the  Appellant/ Accused- Sivakumar, P.W. \026 7 Ravikumar on  17.9.1995 11.00 a.m. and that Senthil was last seen alive  in the company of the Appellant/ Accused.

(ii) The Appellant/ Accused purchased M.O.I Air Gun  from the shop of P.W. 8 \026 Prakash; M.O.I \026 Air Gun is in  working condition and the death was due to Gun Shot  wound and the opinion evidence of P.W. 11- Dr. Jothi  Arunachalam.

(iii) Conduct of the Appellant/ Accused in leaving for  Kerala after the occurrence and that he did not return to  Servaikaranpalayam Village for few days.

(iv) Extra-Judicial Confession to P.W. 5 \026 Village  Administrative Officer and Confession Statement to  P.W.14 \026 Inspector of Police and recovery of M.O.I Air  Gun at the instance of the Appellant / Accused.

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       PW-1 in his deposition categorically stated that he had seen the  Appellant, the deceased and Ravikumar going together on the road at about  11.00 a.m.  He, of course, stated that he was not aware as to where they had  been going which shows his truthfulness, but the fact that the deceased was  last seen with the Appellant is not in dispute.

       He is a natural witness in the sense that when he was informed that the  body of the deceased was lying near the tea shop of Rathinammal, he went  there with PW-2.  He had at that time no reason to suspect any person for  commission of the crime.  He, therefore, did not raise any finger of suspicion  against the Appellant as a result whereof the case under Section 174 of the  Indian Penal Code came to be registered.  Contention of Mr. Sampath is that  he in his first statement before the police did not allege about the presence of  the pellets on the chest of the deceased, is not very material for the purpose  of this case.

       PW-2 also appears to be a truthful witness.  He also stated that he did  not know the reason of death of his elder brother.  He as well as PW-1  admitted that the deceased used to consume liquor.

       PW-3 deposed to the effect that the deceased and the Appellant were  close friends and they used to go together very often.  The evidence of PW-3  was also not material except for the fact that he stated that the deceased and  the Appellant used to go out frequently.

The evidence of PW-4 is not very material.  PW-5 is the Village  Administrative Officer.  He categorically stated that at about 7 a.m. on  29.9.1995, the Appellant made an extra-judicial confession before him.   From a perusal of the statement of the said witness, it appears that the story  was narrated in great details.  The Appellant is said to have stated that a  realization came to him that although he was well-educated, he could do  such thing and, thus, intended to surrender before the police but could not do  so as he was afraid that if he did so he would be beaten up.  The statement  made before PW-5 by the Appellant herein was reduced to writing which  upon having been read over was signed by the Appellant.  He also prepared  a report in this behalf before going to the police station.  In his presence, the  Appellant made a statement also before the Inspector wherein he disclosed  that if he is taken to the Pappan Thottam bridge he can produce the air gun.   On 30th September, 1995 at about 12 O’clock, the said air gun was  recovered.  As regard applicability of Rule 72 of CRP he in the cross- examination stated:

"\005I am having power if any murder took place  within my jurisdiction to receive the complaint and  to send it to police station in that regard\005"

       Nothing material was elicited from him in cross-examination which  would discredit the said witness.

       PW-6 was the person in whose house the Appellant, Ravikumar and  Murugaraj stayed for about 2-3 days.  PW-7 was declared hostile.  Prakash  (PW-8) was the partner in Sri Krishna Pollachi from whose shop the  Appellant is said to have purchased the air gun.   However, he did not say  that the air gun was purchased by the Appellant from his shop whereupon he  was declared hostile.  The High Court, however, relied upon a part of his  evidence which is as under: (i) Air Guns like M.O.I are sold in the shop of  P.W. 8. (ii) That Appellant/ Accused used to purchase  Articles from Krishna Associates \026 shop of P.W. 8.

       P. Rajan (PW-9) is the forensic expert.  In his evidence, he stated:

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"\005The above gun was with .22 inches or 5.5 m.m.  pipe dia and operated by air.  I found the gun was  in shooting condition while I shoot it for test.  The  speed of the pellet shoot from this gun is 400 feet  per second.  The pellets had not penetrate (sic) one  inch thick doal wood plank at the range of 5 feets  as per the tests done under the rules specified  under Arms Act, 1962.  So license is not necessary  to possess such a gun.  The office copy of letter  received from Judicial Magistrate No. 2 Polachi by  Forensic Science department Chennai is Exhibit P- 7.  The test report submitted by me is Exhibit P-8.   There is chance to cause death if the human body  is shot from very nearer\005"

       Contention of Mr. Sampath is that the air gun was received in two  parts, namely, wooden part and iron part separately and, thus, the evidence  of PW-9 should not be relied upon.  We do not see any reason to accept the  said contention because for the purpose of carrying out tests in the forensic  laboratory, the iron part of the gun was material.

       PW-10 was the head constable.  His evidence is not material.  Dr.  Jothi Arunachalam (PW-11) conducted the post mortem examination on the  body of the deceased.  As noticed hereinbefore, Mr. Sampath submitted that  the pellets had not been recovered.  PW-11 categorically stated that the  foreign body seen through X-ray could not be recovered despite great effort  made in this regard during post mortem.  He noticed that the penetrating  injury was in the vital organ of the chest part.

       In view of the aforementioned statement of PW-11, we are of the  opinion that non-recovery of the pellets from the body of the deceased  during post mortem examination was not very material so as to discredit the  entire prosecution case.

       PW-12 is a formal witness who proved some documents.  PW-13 is a  retired head constable who registered the case. PW-14 is the Inspector of  Police Station before whom the Appellant was produced by the Village  Administrative Officer.  He recovered the air gun produced by the Appellant  which had been kept under the Pappannan Thottam canal at about 6.30 a.m.  on 30th September, 1995.

       The ownership of the air gun was not necessary to be proved.   Recovery of the said air gun was made at the instance of the accused in  terms of Section 27 of the Indian Penal Code.  When the possession of the  air gun and recovery thereof had been proved, in our opinion, ownership  takes a back seat.

       Submission of Mr. Sampath that in view of Rule 72 of the Criminal  Rules of Practice, P.W. 5 had no jurisdiction to record the extra-judicial  confession of the Appellant deserves some consideration.

       The Madras Village Police Regulation, 1816 was made for  establishment of a general system of police throughout the territories subject  to the Government of Fort St. George, clause 10 whereof was as follows:

"10. First \026 In cases of a trivial nature, such as abusive  language and inconsiderable assaults or affrays, heads of  villages shall have authority, on a verbal examination,  either to dismiss the parties, or, if the offence charged  shall be proved to have been committed by the persons  accused of it and shall appear deserving of punishment,  to confine the offending parties in the village choultry for  a time not exceeding twelve hours\005 Second \026 Heads of villages shall report to the Police-

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officer of the district all cases in which they shall have  exercised the power of punishment granted to them by  the first clause of this section, but it shall not be  necessary for them to report the cases in which they may  dismiss parties."

       By Regulation 6 of Madras Regulation IV of 1821, it was provided:

"6. First \026 The powers granted to heads of villages,  under clause first, section 10, Regulation XI of  1816, to punish trivial offences, are hereby  extended, under the rules and limitations therein  specified, to the punishment of petty thefts not  attended with aggravating circumstances nor  committed by persons of notoriously bad  character, and where the value of the property  stolen does not exceed one rupee.

Second \026 Heads of villages shall report to the head  Police-officer of the district all cases in which they  shall have exercised the power of punishment  granted to them by clause first of this section."

       The Madras High Court in some decisions held that a village Munsiff  was a Magistrate within the meaning of the Code of Criminal Procedure  whereupon Section 26 of the Evidence Act was amended by adding an  explanation that Magistrate does not include the head of the village  discharging magisterial functions in the Presidency of Fort St. George or  elsewhere unless such headman is a magistrate under the provisions of the  Criminal Procedure Code, 1882.  The only provision where such a power  may be traced to was Section 528(6) of the Criminal Procedure Code, 1898  which reads as under:

"The head of a village under the Madras Village Police  Regulation 1816 or the Madras Village Police Regulation  1821, is a Magistrate for the purposes of this section."

       Before the High Court, strong reliance has been placed, for excluding   the extra-judicial confession, upon a decision of the Division Bench of the  Madras High Court in Raja v. State, by Sub-Inspector of Police, Kalaiyar  Koli Police Station [1995-2-L.W.(Crl.) 513] wherein a reference has been  made in re Lakshmanan [(1971) I MLJ 178].

       In re Lakshmanan (supra) it was observed:

"The above mentioned Regulations 1816 and 1821 are  practically defunct regulations.  It is true under these  regulations the village headman had limited civil and  criminal jurisdiction.  But even under the Madras Village  Courts Act, 1889, giving civil and criminal jurisdictions  to those Courts, it is specifically provided by section 7 of  that Act that only in Villages where there are no  Panchayat Courts, the Village Munsifs will be appointed  by the Collector subject to qualifications as to the  residence etc.  But after the Madras Village Panchayats  Act, 1950, came into force, section 132 (I) therein  provides that every panchayat constituted or deemed to  be constituted under the Act shall be deemed to be  Panchayat Court for that area notwithstanding anything  contained in the Madras Village Courts Act.  It is true  that only Presidency Magistrates or the Magistrates of the  First Class and such of those Magistrates, specifically

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empowered can record confessional statement and the  Village Munsif, even if he is deemed to be a magistrate,  is not competent to record confession.  Thus, having  regard to these provisions and the actual practice, it could  not be said that the Village Headman is a Magistrate  contemplated under the Criminal Procedure Code who  could, if empowered, record confessions under the  provisions of the said Code.  Therefore, there is no real  legal bar to the extra judicial confessional statement  made by the appellant to the village Munsif during the  investigation being admitted in evidence\005"

       But despite holding so, the Bench having regard to the practice  embodied in Rule 72 of the Criminal Rules of Practice, the extra-judicial  confession was not relied upon particularly in view of the fact that  conviction under Section 302 was found to be justified on other evidence of  the case.

       In   re Lakshmanan (supra), therefore, a law has been laid down to the  effect that a village headman is not a magistrate under the Code of Criminal  Procedure.  We, however, for the reasons stated hereinafter, do not agree  that although Rule 72 of the Criminal Rules of Practice has, for all intent and  purport, become otiose, still the principle laid down therein that a confession  before a village headman should not be relied upon as a matter of practice.  

A Village Administrative Officer, may have a power to report an  offence committed within the jurisdiction of the police station where he is  posted but the same would not make him a person in authority.  Even under  certain circumstances, Section 40 of the Code of Criminal Procedure (for  short "the 1973 Code") enjoins a duty upon every officer employed in  connection with the affairs of a village and every person residing in a village  to communicate to the nearest Magistrate or to the officer in charge of the  nearest police station whichever is nearer any information which he may  possess respecting the matters enumerated therein.  Sub-section 2(iii) of  Section 40 defines "officer employed in connection with the affairs of the  village" to mean a member of the panchayat of the village and includes the  headman and every officer or other person appointed to perform any  function connected with the administration of the village.  

       Section 528 of the Code of Criminal Procedure, 1898 empowered the  Sessions Judge, District or Sub-Divisional Magistrate to withdraw cases  from the courts specified therein.  Sub-section (6) of Section 528 of the  Code of Criminal Procedure, 1898 is similar to that of Sub-section (6) of  Section 528 of the Code of Criminal Procedure, 1882.   

       In Madavarayachar v. Subba Rau [(1891) 15 M 94], it was opined:

"Village Magistrates are not Magistrates under the  Code of Criminal Procedure, and, therefore, we do  not think that the Joint Magistrate had power under  section 528 to withdraw the case and transfer it for  disposal to the Second-class Magistrate."

       However, in Sevakolandai v. Ammayan, (1902) 26 M 395], it was  held that it is permissible for a District Magistrate or a Sub-Division  Magistrate to transfer a criminal case from the file of a Village Magistrate in  respect of cases involving petty thefts which a Village Magistrate is  empowered to try by Regulation IV of 1821.   

       The 1973 Code was brought about to give effect to the constitutional  mandate to separate judiciary from the executive.  The entire control and  supervision of the Magistrates in terms of the 1973 Code now vests in the  Sessions Judge and the High Court.  Transfer of criminal cases is now dealt  in Chapter XXXI of the 1973 Code.  Section 406 confers power upon the  Supreme Court to transfer cases and appeals from one State to another.  

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Section 407 empowers the High Court to transfer cases and appeals from  one court to another situate within the State.  Section 408 confers power  upon the Sessions Judge to transfer cases from one criminal court to another  criminal court within his sessions division.  Section 409 confers power upon  the Session Judge to withdraw cases and appeals from other sessions court.   Section 410 empowers the Chief Judicial Magistrate to recall any case from  any Magistrate subordinate to him either to himself or to transfer it to any  other Magistrate.  Section 411 empowers the District Magistrate or Sub- divisional Magistrate to make over for disposal or withdrawal any case from  or recall any case or refer it for disposal to any other Magistrate.  Sub- section (6) of Section 528 of the 1898 Code, therefore, has not been retained  by the 1973 Code.

       Criminal Rules of Practice and Orders, 1931 of the Madras High  Court was issued by the High Court in exercise of its power conferred by  Article 227 of the Constitution of India.  Rule 72 of the Rules reads thus:

"Village Magistrates not to record confession. \026 Village  Magistrates are absolutely prohibited from reducing or  writing any confession or statement whatever made by an  accused person after the Police investigation has begun."

       The said rule has lost all its significance in view of the fact that now  under the Code of Criminal Procedure or any other statute or statutory  regulations, the village headman is not a village Magistrate.  The post of a  Village Magistrate since 1973 does not exist.

       The Village Administrative Officer, it has not been shown, has been  conferred with any power of a Magistrate by reason of the provisions of the  Code of Criminal Procedure or otherwise.  It has also not been shown that he  exercises any judicial or quasi-judicial function.  Indisputably he has no role  to play in the matter of an investigation in a criminal case.

       The Village Magistrates evidently, under the new Code of Criminal  Procedure, are not empowered to record any confession or statement either  in terms of Section 162 or Section 164 of the Code of Criminal Procedure.

       For all intent and purport, therefore, Rule 72 of the Criminal Rules of  Practice has become redundant and nugatory, logical corollary whereof  would be that there does not exist any embargo for an accused person to  make an extra-judicial confession before a Village Administrative Officer.

       We do not, thus, see any reason as to why such an extra-judicial  confession could not be made before a Village Administrative Officer.  With  a view to exclude the admissibility of the confession made before a person,  he must be a police officer.  A Village Administrative Officer does not  answer the descriptions.  While carrying out his duty to inform the Police or  the magistrate in terms of Section 40 of the Code, the village headman does  not act as a public servant removable only by or with the sanction of the  local government nor he acts in his capacity as Magistrate. [See Pregada  Balanagu v. Krosuru Kotayya, AIR 1937 Mad 578].

       We, for the reasons stated hereinbefore, are of the opinion that the  extra-judicial confession by the Appellant before the Village Administrative  Officer was not inadmissible and, thus, could be relied upon.

       In Mohan Lal Pangasa v. the State of U.P. [AIR 1974 SC 1144],  whereupon Mr. Sampath placed strong reliance, this Court held:

"3\005It is true that there are no direct witnesses to the  actual murder. Even so, an impressive array of telling  circumstances has, according to the Courts below,  convincingly shown the accused to be guilty. Men are  convicted not merely on direct evidence alone but also on

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circumstantial testimony. In the present case, the accused  was the person last seen with the deceased; his conduct  of running away when challenged and chased and  crouching underneath a bogie when the Rakshaks were  about to run him down, his wearing clothes which were  bloodstained, the recovery of the knife, Ex. 1, from his  trouser pocket and his conduct in telling the Rakshaks  that he murdered his companion, are too overwhelming  for any possible inference of innocence. Moreover, the  accused led the police party to the discovery of the dead  body which also has an incriminating impact."

       The said decision, thus, instead of assisting the Appellant supports the  Prosecution.

       In Mujeeb and another v. State of Kerala [AIR 2000 SC 591],  whereupon again Mr. Sampath relied, the prosecution failed to prove even  the circumstances pointed out to the guilt of the Appellant.

       Extra-judicial confession may or may not be a weak evidence.  Each  case is required to be examined on its own fact.  In Sidharth etc. etc. v. State  of Bihar [JT 2005 (12) SC 310] a Division Bench of this Court held:

" ...  He had also made extra-judicial confession to PW-8  Arko Pratim Banerjee.  The confession made by  appellant Arnit Das was not under any inducement, threat  or promise and is voluntary in nature.  Therefore, it is  perfectly admissible under the Evidence Act\005"

       In Piara Singh and Others v. State of Punjab [(1977) 4 SCC 452], this  Court observed:

"\005The learned Sessions Judge regarded the extra  judicial confession to be a very weak type of evidence  and therefore refused to rely on the same. Here the  learned Sessions Judge committed a clear error of law.  Law does not require that the evidence of an extra  judicial confession should in all cases be corroborated. In  the instant case, the extra judicial confession was proved  by an independent witness who was a responsible officer  and who bore no animus against the appellants. There  was hardly any justification for the Sessions Judge to  disbelieve the evidence of Balbir Singh particularly when  the extra judicial confession was corroborated by the  recovery of an empty from the place of occurrence."

       Yet again in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] it  was stated:

"19. 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. The value of the evidence as to confession,  like any other evidence, depends upon the veracity of the  witness to whom it has been made. The value of the  evidence as to the confession depends on the reliability of  the witness who gives the evidence. It is not open to any  court to start with a presumption that extra-judicial  confession is a weak type of evidence. It would depend  on the nature of the circumstances, the time when the  confession was made and the credibility of the witnesses  who speak to such a confession. Such a confession can be

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relied upon and conviction can be founded thereon if the  evidence about the confession comes from the mouth of  witnesses who appear to be unbiased, not even remotely  inimical to the accused, and in respect of whom nothing  is brought out which may tend to indicate that he may  have a motive of attributing an untruthful statement to the  accused, the words spoken to by the witness are clear,  unambiguous and unmistakably convey that the accused  is the perpetrator of the crime and nothing is omitted by  the witness which may militate against it. After  subjecting the evidence of the witness to a rigorous test  on the touchstone of credibility, the extra-judicial  confession can be accepted and can be the basis of a  conviction if it passes the test of credibility."

                                       [Emphasis supplied]

       For the reasons aforementioned, the courts below must be held to have  correctly come to the conclusion that the prosecution case has been proved  as against the accused in view of the extra-judicial confession of the  Appellant before the Village Administrative Officer, recovery of the air gun  from Pappannan Thottam canal, the conduct of the Appellant and that he  was last seen with the deceased.

Each one of the aforementioned circumstances although may not by  itself be sufficient to prove the guilt of the Appellant, we are satisfied that  the cumulative effect thereof satisfies the test of proof of the guilt of the  Appellant on the basis of circumstantial evidence for the commission of the  offence under Section 304, Part II of the Indian Penal Code.  The appeal  being devoid of any merit is, thus, dismissed.