Holding

An extra‑judicial confession before a Village Administrative Officer is admissible, and the cumulative circumstantial evidence satisfies the proof required for conviction under Section 304 Part II IPC.

Summary

The appellant Sivakumar was convicted under Section 304 Part II of the Indian Penal Code for the death of his relative, based on circumstantial evidence, the recovery of an air‑gun, and an extra‑judicial confession he made to a Village Administrative Officer (VAO) and later to a police inspector. The appellant challenged the admissibility of the confession, arguing that Rule 72 of the Madras Criminal Rules barred a VAO from recording confessions and that the air‑gun’s ownership was not proved. The Supreme Court held that a VAO is not a police officer nor a magistrate, so Rule 72 is redundant and the confession is admissible under Section 25 of the Evidence Act. The Court also ruled that ownership of the gun need not be proved once its recovery is established under Section 27 of the Evidence Act. The cumulative circumstances satisfied the test of proof on circumstantial evidence, and the conviction was upheld. The appeal was dismissed.

Issues considered

Whether an extra‑judicial confession made before a Village Administrative Officer is admissible under the Evidence Act and the Criminal Rules.
Whether Rule 72 of the Madras Criminal Rules of Practice bars the admission of such a confession.
Whether the circumstantial evidence, including the confession and recovery of the air‑gun, is sufficient to sustain a conviction under Section 304 Part II IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 40, s. 528
Indian Evidence Act, 1872s. 25, s. 27
Indian Penal Code, 1860s. 174, s. 304

Subjects

extra‑judicial confessionadmissibilityVillage Administrative OfficerRule 72circumstantial evidenceSection 304 IPCEvidence ActCriminal Procedure Code

Judgment

A SIVAKUMAR
v.
STATE BY £NSPECTOR OF POI.:.ICE

DECEMBER 8, 2005 .,

B . (S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Penal Code, 1860:

C Section 304, Part 11--Circumstantial evidence-Basis of conviction-
Accused · al'ld ·deceased were relatives as well as friends-Accused and
deceased going together was seen by PW-I-On the same day PW-I came to
lean1'that the body of the deceased was lying near a tea stall-PW-I and
PW-2 went there and found the deceased dead-Postmortem revealed in
injury caused by an air gun-The air gun was recovered pursuant to
D disclosure statement by the accused-Trial Court convicted accused under
S. 304, Part ll--High Court affirmed the conviction-Correctness of-Held:
When the possession of the air gun and recovery thereof had been proved
ownership of the air gun takes a back seat-The deceased was also last seen
with the accused-The cumulative effect of these circumstances satisfies the
E test ofproof of the guilt of the accused on the basis ofcircumstantial evidence
for the commission of the offence under s.304, Part II-Conviction upheld

Evidence Act, 1872:

Section 25-Confession-Extra-judicial confession-Before Village
F Administrative Officer-Admissibility of-Held: With a view to excluding the
admissibility of the confession made before a person, he must be a police
offic~r-A Village Administrative Officer is not a police officer-Hence, extra-
judicial confession before a Village Administrative Officer is admissible.

According to the prosecution, the appellant-accused and the deceased
G were relatives as well as friends. The deceased was addicted to drinks. On
the fateful day, PW-t'had seen the appellant, PW-7and the deceased going
together. On the same day, PW-2 came to learn that the body of the deceased
was lying near a tea stall. PWs I and 2 went there and found the deceased
dead. Postmortem revealed an injury caused by an air gun. The appellant made
I .

H an extra judicial confession of his guilt before the Village Administrative
578
SIV AKUMAR v. STATE BY INSPECTOR OF POLICE 579
Officer. The appellant also allegedly made a confession before the Inspector A
of Police leading to recovery of the air gun from a canal. The appellant was
found guilty of an offence under Section 304, Part II of the Penal Code, 1860.
The High Court affirmed the conviction. Hence the appeal.

The following question before the Court :-
B
Whether the extra judicial confession by the appellant before the Village
Administrative Officer was admissible in view of Rule 72 of the Cri111inal
Rules of Practice and Orders, 1931 of the Madras High Court?

Dismissing the appeal, the Court
c
HELD: 1. PW-1 in his deposition categorically stated that he had seen
the appel!ant, the deceased and PW-7 going together. 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. (584-D-EI
D
2. PW-I is a natural witness in the sense that when he was informed
that the body of the deceased was lying near the tea shop, 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 Penal Code, E
1860 came to be registered. [584-E-F(

3. 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. (584-GI
F
4. The Village Administrative Officer categorically stated that 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
detail. 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, thu~,}ntended to
surrender before the police but could not do so as he was afraid that if did so G
he would be beaten up. In the presence of the Village Administrative Officer,
the appellant made a statement; also before the Inspector wherein he disclosed
that if he was taken to the canal he could produce the air gun. The said air
gun was recovered pursuant to the said statement. [585-B-C-D)

5. PW-11 categorically stated that the foreign body seen through X-ray H
580 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A could not be recovered despite great effort made in this regard during
postmortem. He noticed the penetrating injury was in the vital organ of the
chest part Non-recovery of the pellets from the body of the deceased during
postmortem examination was not very material so as to discredit the entire
prosecution case. (586-D-E)

B 6. 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 Sectioq.27 of the Evidence Act, 1872. When the possession of the air gun
and recovery thereof had been proved ownership takes a back seat.
(586-G, HJ
c 7. 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, 1973 or otherwise. It has also not been shown
that he exercises any judicial or quasi-judicial function. Indisputably he has
no role to playing the matter of an investigation in a criminal case.
D (590-G-H)
Raja v. State, 1995-2-1 W Crl. 513, In Re: Lakshmanan (1971) 1 MLJ
178, Madavarayachar v. SubbaRau, (1891) 15 M 94 and Sevakolandai v.
Ammayan, (1902) 26 M 395, referred to.

8. Village Magistrates evidently under the Code of Criminal Procedure,
E 1973 are not empowered to record any confession or statement either in terms
of Section 162 or Section 164 of the Code of Criminal Procedure. (591-A)
9. For all intents and purport, therefore, Rule 72 of the Criminal Rules
of Practice and Orders, 1931 of the Madras High Court has become redundant
and nugatory, logical corollary whereof would be that there does not exist any
F embargo for an accused person to make an extra-judicial confession before a
Village Administrative Officer. (591-B)
10. There is no reason why an extra-judicial confession could not be
made before a Village Administrative Officer. With a view to excluding the
admissibility of the confession made before a person, he must be a police
G 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 does he
act in his capacity as a Magistrate. (591-C, D)

H Pregada Balanagu v. Krosuru Kotayya, AIR (1937) Mad 578, approved.
SIVAKUMAR v. STATE BY INSPECTOR OF POLICE 581
11. The extra-judicial confession by the appellant before the Village A
Administrative Officer was, therefore, not inadmissible and, thus, could be
relied upon.1591-DJ

Mohan Lal Pangasa v. State of U.P.., AIR (1974) SC 1144, Mujeeb v.
State of Kera/a, AIR (2000) SC 59, Sidharth v. State of Bihar, JT (2005) 12
SC 310, Piara Singh v. State of Punjab, 119771 4 SCC 452 and State of B
Rajasthan v. Raja Ram, 12003] 8 SCC 180, relied on.

12. The courts below 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, C
recovery of the air gun from the canal, the conduct of the appellant and that
he was last seen with the deceased. 1593-D)

13. Each one of the aforementioned circumstances although may not by
itself be sufficient to prove the guilt of the appellant, the cumulative effect
thereof satisfies the test of proof of the guilt of the appellant on the basis of D
circumstantial evidence for the commission of the offence under Section 304
Part II of the Penal Code, 1860.1593-E, FJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 242 of
~ E
From the Judgment and Order dated 24.6.2004 of the Madras High Court
in Crl.A. No. 512of1997.

A.T.M. Sampath, Mrs. T.S. Shanthi and Mrs. R. Meena Kumari for the
Appellant. F
Subramonium Prasad, Abhay Kumar and Jai Kishore for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. This appeal is directed against a judgment and order G
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 H
582 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A as friends. Relationship of parties is not in dispute. Nataraj Gounder (PW-I)
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 I 7.9.1995, PW-I while standing in his Kalam had
B 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- I lodged a First Information
Report whereupon a case under Section 174 of the Indian Penal Code was
C registered. One Dr. Jothi Arunachalam (PW-11) conducted autopsy on the
dead body of the deceased and inter alia found a circular penetrating wound
Yi cm medial to right nipple. He opined that the injury might have been caused
by an air gun like M.0.1. 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.
D
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
E 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-
F 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
G 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 n·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
H every chance to occur death".
SIVAKUMAR v. STATE BY INSPECTOR OF POLICE [SINHA, J.] 583
A chargesheet was filed against the Appellant for commission of an A
offence under Section 302 of the Indian Penal Code. The prosecution in
support of its case examined 14 witnesses. The learne.d 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 11 of the Indial) Penal Code and sentenced
him to undergo rigorous imprisonment for· five years. B
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 C
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 D
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 tenns whereof a village magistrate is prohibited from recording the
extra judicial confession or statement whatever made by an accused person
E
after the police investigation has begun.

Mr. Subramonium Prasad, learned counsel appearing on behalf of the
...
Respondent, however, supported the judgment contending that the F
circumstantial evidences against the Appellant had been fully proved in view
of the fact that:

(i) he was last seen with the deceased;

(iO his conduct in leaving the place of occurrence and going to the
State of Kerala for a few days; G
(iii) extra-judicial confession; and

.(iv) recovery of air gun at his instance from Pappannan Thottam
canal.

H
584 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.

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

(i) Evidence of P. W. I that he saw Senthil along with the Appellant/
Accused- Sivakumar, P.W. 7 Ravikumar on 17.9.1995 11.00 a.m. and
that Senthil was last seen alive in the company of the· Appellant/
Accused.
B
(ii) The Appellant/Accused purchased M.0.1 Air Gun from the shop
of P.W. 8 ·Prakash; M.0.1 - 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.

C. (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 Village Administrative Officer
and Confession Statement to P.W.14 Inspector of Police and recovery
D of M.0.1 Air Gun at the instance of the Appellant/Accused.

PW-I 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
E last seen with the Appellant is not in dispute.
He is a natural witness in the sense that when he was infonned 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
F 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.
G 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-I
admitted that the deceased used to consume liquor.

PW-3 deposed to the effect that the deceased and the Appellant were
H close friends and they used to go together very often. The evidence of PW-
SJVAKUMAR v. STA TE BY INSPECTOR OF POLICE [SINHA, J.] 585
3 was also not material except for the fact that he stated that the deceased A
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 B
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 C
over was signed by the Appellant. He also prepared a report in this behalf
before going to the police station. In his presence, the Appell~nt 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: D
" .. .I 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 ..... "

Nothing material was elicited from him in cross-examination which would E
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 F
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.
G
(ii) That Appellant/ Accused used to purchase Articles from Krishna
Associates shop of P. W. 8.

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

" ... The above gun was with .22 inches or 5.5 m.m. pipe dia and H
586 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.

A 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
B Magistrate No. 2 Polachi by Forensic Science department Chen.nai 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.... "

Contention of Mr. Sampath is that the air gun was received in two parts,
C 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.
D Arunachalarp (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.
E
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.

F 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.
G 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
H seat.
SIVAKUMAR v. STATE BY INSPECTOR OF POLICE [SINHA, J.] 587
Submission of Mr. Sampath that in view of Rule 72 of the Criminal Rules A
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: B
"10. First 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 C
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

Second Heads of villages shall report to the Police-officer of the
district all cases in which they shall have exercised the power of D
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 I 821, it was provided:
E
"6. First The powers granted to heads of villages, under clause first,
section I 0, 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, F
and where the value of the property stolen does not exceed one rupee.

Second 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 G
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 H
588 SUPREME COURT REPORTS [2005] SUPP. S S.C.R.

A 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."
B
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. Stpte, by Sub-Inspector of Police, Kalaiyar
Kali Police Station, (1995-2-L.W.(Crl.) 513 wherein a reference has been made
C 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 eriminal jurisdiction. But even under the
D
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,
E 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
F such of those Magistrates, specifically 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 cculd, if empowered, record
G 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 ... "

H But despite holding so, the Bench having regard to the practice embodied
SIVAKUMARv. STATEBYJNSPECTOROFPOLICE[SJNHA,J.] 589

in Rule 72 of the Criminal Rules of Practice, the extra-judicial confession was A·
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 B
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 C
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 D
station whichever is nearer any information which he may possess respecting
the mattP.rs 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. E
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 F
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 G
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 H
590 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A 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
B 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.
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
C Sessions Judge to transfer cases from one criminal court to another criminal
court within his ses~ions 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
D 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
E 227 of the Constitution of India. Rule 72 of the Rules reads thus:

"Village Magistrates not to record confession. 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."
F
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.

G 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.
H
SIV AKUMAR v. STATE BY INSPECTOR OF POLICE [SINHA, J.] 591

The Village Magistrates evidently, under the new Code of Criminal A
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 B
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, C
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]. D
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 UP., AIR (1974) SC I 144, E
whereupon Mr. Sampath placed strong reliance, this Court held:

"3 .. .lt 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 F
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. l, from his trouser G
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 H
592 SUPREME COURT REPORTS (2005) SUPP. 5 S.C.R.

A Prosecution.
In Mujeeb and Anr. v. State of Kera/a, 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.

B 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 oj
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
C any inducement, threat or promise and is voluntary in nature. Therefore,
it is perfectly admissible under the Evidence Act.. .."

In Piara Singh and Ors. v. State ofPunjab, (1977] 4 SCC 452, this Court
observed: '

D " ... 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
E who was a resp'?nsible officer and who bore no animus against the
appellar.ts. 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."
F
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
G 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.
H
SIVAKUMAR v. STATE BY INSPECTOR OF POLICE [SINHA, J.] 593
It would depend on the nature of the circumstances, the time when A
the confession was made and the credibility of the witnesses who
speak to such~ confession. Such a confession can be relied upon and
conviction can be founded thereon ifthe 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 B
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 C
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 D
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.
E
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 F
devoid of any merit is, thus, dismissed.

v.s.s. Appeal dismissed.