Case: Sivakumar Vs. State By Inspector Of Police

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. 39. 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. 40. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practices 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. 41. 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 vs. Krosuru Kotayya, AIR 1937 Mad. 578 ). 42. 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. 43. In Mohan Lal Pangasa vs. The State of U.P. (AIR 1974 SC 1144 ), whereupon Mr. Sampath placed strong reliance, this Court held: "3. It 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 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." 44. The said decision, thus, instead of assisting the Appellant supports the Prosecution. 45. In Mujeeb and another vs. 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. 46. 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. vs. 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.." 47. In Piara Singh and Others vs. State of Punjab (1977) 4 SCC 452 ), this Court observed: "... The 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 ." 48. Yet again in State of Rajasthan vs. 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 facts. 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 relied upon and conviction can be founded thereof 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)

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. 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 dispute11. 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 is 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 case12. 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 liquor13. 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 frequently18. 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 reliedupon.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 material20. 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 case22. 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 ofSection 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 seat23. Submission of Mr. Sampath that in view of Rule 72 of the Criminal Rules of Practice, PW.5 had no jurisdiction to record the extra-judicial confession of the Appellant deserves some consideration30. 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 practice39. 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 Procedure40. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practices 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 Officer41. 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.