2005 Supreme(SC) 1574

2005(8) Supreme 637
Supreme Court of India
(From Madras High Court)
S.B. Sinha & P.P. Naolekar, JJ.
Sivakumar —Appellant
versus
State by Inspector of Police —Respondent
Criminal Appeal No. 242 of 2005
Decided on 8-12-2005
Counsel for the Parties :
For the Appellant : A.T.M. Sampath, Mrs. T.S. Shanthi and Mrs. R. Meena Kumari, Advocates.
For the Respondent : Subramonium Prasad, Abhay Kumar and Jai Kishore, Advocates.

Important point
For all intent and purport Rule 72 of Criminal Rules of Practice has become redundant and extrajudicial confession by an accused before the Village Administrative Officer is admissible and can be relied upon.

Headnote:Indian Penal Code, 1860—Section 304 Part II—Appellant convicted under on basis of extra-judicial confession made before village Administrator and other circumstantial evidence—Dead body of deceased was noticed lying near a Tea Stall and death was due to gun shot injury—PW1 and 2 had seen deceased on company of appellant at about 11 a.m. and their evidence appeared truthful and natural—Accused made confession before village Administrative Officer PW 5 which was reduced in writing and signed by appellant—Defence contention that PW5 had no jurisdiction to record extra judicial confession in view of Rule 72 of Criminal Rules of Practice—Rule has become redundant and nugatory and does not create any embargo for an accused to make an extra judicial confession before and Village Administrative Officer—Village Administrative Officer did not answer description of a police officer—Extrajudicial confession before Village Administrative Officer was not inadmissible and thus could be relied upon—Extra judicial confession may or may not be a weak evidence—Conviction of appellant was well founded based on extra-judicial confession, recovery of air gun at his instance, accused last seen with deceased.

       Held : 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. (Paras 27 and 28)

       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. (Paras 36 to 38)

       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. (Paras 44 and 45)