Case: Sivakumar Vs. State By Inspector Of Police

2. The Appellant, herein and the deceased Senthil were relatives as well as friends. Relationship of parties in not in dispute. Nataraj Gounder (PW-1) was the brother-in-law of the deceased whereas Radhakrishan (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 drinks3. At about 11.00 a.m. on 17.9.1995, PW-1 while standing in his Kalam had seen the Appellant, on 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 one Rathinammal PWs - 1 & 2 went there an 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 1/2 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-114. 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 therefor 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 where 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 (PW14) 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 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 I" 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"5. 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 years6. 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.

Reasoning: 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.