IMPORTANT CASE LAWS

Tuesday, July 19, 2011

Right to Information Act (India)

Tuesday, June 28, 2011

Difference between Common Object and Common Intention

2006 (3) SCC 752 Munna Chanda Vs. State of Assam

Munna Chanda vs State Of Assam on 24 February, 2006

Author: S Sinha

Bench: S Sinha, D Bh, Ari

CASE NO.:

Appeal (crl.) 49 of 2005

PETITIONER:

Munna Chanda

RESPONDENT:

State of Assam

DATE OF JUDGMENT: 24/02/2006

BENCH:

S.B. Sinha & Dalveer Bhandari

JUDGMENT:

J U D G M E N T

With

Criminal Appeal Nos. 840/2005, 841/2005, 842/2005 and 251/2005.

S.B. Sinha, J.

The appellants were charged for commission of an offence under Section 302 of the Indian Penal Code for intentionally causing death of one Moti Suklabaidya. 3.10.1995 was the 'NAVMI'. The deceased went to join 'Durga Puja' festival along with Sushendra Chandra-PW3 and Babul Chanda. They met with one Tapan Chanda near Chandranathpur Railway Station. The latter informed them that Tunu Chanda and Montu Chanda had assaulted him in front of a jewellery shop belonging to Makhan Chanda- PW2. Gauaranga s/o Makhan Chanda-PW2 in the meantime came and informed his father that the said Tunu Chanda and Montu Chanda had quarrelled and broke a glass pane of his showroom. Makhan Lal-PW 2 immediately came to the Bazar. He found his younger brother Sushendra- PW3, Babul Chanda and deceased Moti Suklabaidya in front of his shop. Having asked the reason of quarrel and consequent breaking of the glass of the show room, he was informed that the dispute has been settled by Ambika Sahu-PW6. Thereafter the deceased Moti, Sushendra-PW3, Babul and Makhan Lal-PW2 entered into a tea stall belonging to Siba Prasad Shome- PW7 to have tea. Bhuttu @ Raju Singh, who is admittedly the younger brother of one Ganesh was employed in the said shop as a servant. The aforementioned persons were taking tea in a cabin of the tea stall. In the meantime, some ladies walked therein and asked for separate seats whereupon Bhuttu asked the abovementioned four boys to vacate the cabin which led to an altercation. However, on the intervention of the owner of the tea stall the boys left the shop and went to the 'watch repairing' shop belonging to Nirmal Chanda-PW4. The appellant Bhuttu came there and wanted to know as to why he made complaint to his employer about the earlier incident. He had also asked him to come out of the shop. On the intervention of the owner of the said 'watch repairing' shop the matter subsided. Bhuttu, however, came again and scolded Moti, whereupon Nirmal Chanda-PW 4 again intervened. According to the prosecution case, accused Bhuttu came again with Ratan Das, Billu and Kartik and some other persons. They asked Moti (deceased ) and others to come out of the shop whereupon Nirmal-PW4 intervened and impressed upon Moti and others to seek their apology. When Moti (deceased) in a bid to apologize touched the feet of accused Bhuttu, Ratan Das asked him to catch hold of him and they started assaulting him. Tapan Chanda was also assaulted by them. He took shelter in a nearby shop. Moti (deceased), however, freed himself from the grip of the appellants and ran towards the Railway Station. He was chased by the appellants and others. The prosecution witnesses and others in the meantime, bolted themselves inside the shop. They came out about half an hour thereafter and found the market area deserted. Thereafter, they went to the house of Moti (deceased) and inquired from his brother-PW1 as to whether he had returned. On being informed that he had not, they went to the house of Ambika Prasad-PW6 who advised them to search for him. On the next morning on receiving an information that a dead body was lying near a canal, they went to the spot and found the same to be that of Moti (deceased). The brother of the deceased -PW1 lodged a first information report wherein he named Bhuttu (describing him as a younger brother of Ganesh), Ratan Das Gupta s/o unknown, Billo Deb s/o unknown, Kartik Deb s/o unknown and 20/25 others.

The appellants were put on trial. The prosecution in support of its case examined 11 witnesses. There was no direct evidence. There was no eye witness to the occurrence. The materials which were brought on record to prove circumstantial evidence in the case by the prosecution were : (1)That some of the appellants were chasing the deceased with others; (2) So called 'Sulahanama' was prepared which had been signed inter alia by PW-2, PW-3 and others representing that they would not file any complaint against the appellants.

PW-1 is the informant. He was not a witness to any part of the occurrence. PW-2 is Makhanlal Chanda, the glass of whose shop was broken. He was a witness to the entire occurrence. Apart from supporting the statements made in the first information report, he stated that appellant Ratanlal Chanda took his signature on a written paper which contained an assurance on their behalf that no case would be filed in relation to the incident. He further alleged that the appellant Ujjal had escorted them from the market. In his cross-examination , however, it was pointed out that he had stated before the police that when the appellant Bhuttu came, six persons accompanied him whose names he did not know. In his cross- examination he further stated that it was a dark night so he could not see who had assembled in front of the shop. PW-11 the Investigating Officer, however, accepted that the witnesses had stated before him that while appellant Bhuttu had come, other six persons had accompanied him whose names he did not know. PW-2 had further stated before him that from inside the shop he had felt that some people were chasing the deceased. He further stated that he saw the accused persons chasing the deceased towards Chandranathpur Railway Station.

PW-3 apart from being a witness upto the point of chasing of the deceased by the appellants and others, is one of them who had gone to the house of Moti (deceased) and upon being told that he had not come back, went to the residence of Ambika Sahu on the next morning.

PW-4 is Nirmal Chanda. He witnessed a part of occurrence. In his cross-examination, however, he stated that the persons who came with Bhuttu were not seen in the dock. He was not declared hostile.

PW 5 Uttam Chanda is a witness to the inquest report. PW-6 is Ambika Parsad Sahu. He accepted that at about 11.00 p.m. all the accused persons had come to his house and handed over a Sulahanama paper which had been seized from him by the police. He could not say as to how Moti (deceased) was done to death. He also could not say about the quarrel between the accused and deceased. PW-7 Siba Prasad Shome was the owner of the tea stall, wherein, the first quarrel between Bhuttu on the one hand and Moti and others, on the other, took place. In his cross-examination he stated that the quarrel between Bhuttu and other boys was settled amicably and all the boys left in a happy mood. PW-8 is Somnath. He was the owner of a hotel at Chandranathpur Bazar. He allegedly heard cries of a quarrel. He stated that later on the matter was settled amicably. He was declared hostile. PW-9 is Dr. K.K. Chakraborty. He conducted post mortem examination of the deceased. He found the following anti mortem injuries on the dead body of Moti (deceased):

"1. Lacerated injury right ear 2 x = cm. x whole thickness blood drop are ardent to tissue.

2. Cut injury left lobule of ear 1 x = x < cm. blood drops are adherent to the tissue.

3. Cut injury left side of scrutum 2 x 1 x com x left tostis

4. Lacerated injury lower lip left side 1x1 x = x < cm.

Contusion under the scalp in left will temparo

partial are present. A skull was healthy.

Subdwal hermonage on left side on left side of

brain present."

According to him injury Nos. 1 and 2 could be caused by material Ex. 1 which was seized by the police from near the place where the dead body was found. It was a root of a tree. PW-10 Swapan Chakraborty is an Asstt. Station Master. He was the Station Master of Railway Station. He merely stated that in the night a boy came to him and wanted a torch light which was given and the same was returned to him after 15-20 minutes. PW-11 Fazlur Rahman is the Investigating Officer.

In the First Information Report or in the evidence, appellants Munna and Ujjal were not named. They were not identified in the dock. No recovery was made from them. They were not named by any of the prosecution witnesses as having taken any part in the commission of the offence. As against Ujjal the only evidence was that he had obtained the signature of one of the prosecution witness.

The learned Sessions Judge as also the High Court recorded the judgment of conviction and sentence relying on or on the basis of the depositions of PW-2 and PW-3. It was accepted that there was no direct evidence in regard to the role played by any of the appellants in causing the death of Moti (deceased). As noticed hereinbefore, the finding of guilt of the appellants was arrived at only on the basis of two circumstantial evidence that (1) they had chased the deceased; (2) they had prepared and forced the prosecution witnesses to sign a sulhanama wherein a statement was made that they would not file any complaint against the accused. Homicidal death of Moti is undisputed. There is no evidence as to who had assaulted him. Role played by the accused either conjointly or individually in causing death of the deceased is not known. Some offence was committed, but who did so is not known. Whether in the aforementioned situation, all the accused would be convicted with the aid of Section 149 of the Indian Penal Code is the question.

The concept of common object, it is well known, is different from common intention. It is true that so far as common object is concerned no prior concert is required. Common object can be formed at the spur of the moment. Course of conduct adopted by the members of the assembly, however, is a relevant factor. At what point of time the common object of the unlawful assembly was formed would depend upon the facts & circumstances of each case.

Section 149 IPC creates a specific and distinct offence. There are two essential ingredients thereof :

(i) Commission of an offence by any member of an unlawful assembly, and

(i) Such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.

It is, thus, essential to prove that the person sought to be charged with an offence with the aid of Section 149 was a member of the unlawful assembly at the time the offence was committed.

The appellants herein were not armed with weapons. They except Bhuttu were not parties to all the three stages of the dispute. At the third stage of the quarrel, they wanted to teach the deceased and others a lesson. For picking up quarrel with Bhuttu, they might have become agitated and asked for apologies from Moti. Admittedly, it was so done at the instance of Nirmal, Moti was assaulted by Bhuttu at the instance of Rattan. However, it cannot be said that they had common object of intentional killing of the deceased. Moti, however, while being assaulted could free himself from the grip of the appellants and fled from the scene. The deceased, was being chased not only by the appellants herein but by many others. He was found dead next morning. There is, however, nothing to show as to what role the appellants either conjointly or separately played. It is also not known as to whether if one or all of the appellants were present, when the last blow was given. Who are those, who had assaulted the deceased is also not known. At whose hands he received injuries is again a mystery. Neither Section 34 nor Section 149 of the Indian Penal Code is, therefore, attracted. [See Dharam Pal and Others v. State of Haryana (1978) 4 SCC 440 and Shambhu Kuer v. State of Bihar AIR 1982 SC 1228].

We are, however, not obliviously that in Bishna @ Bhiswadeb Mahato & Ors. v. State of West Bengal [2005 (9) SCALE 204], it was stated :

"For the purpose of attracting Section 149 and/or 34 IPC, a specific overt act on the part of the accused is not necessary. He may wait and watch inaction on the part of an accused may some time go a long way to hold that he shared a common object with others."

Furthermore, it is evident that no evidence has been brought on records to establish that the appellants Munna and Ujjal had committed any offence. As noticed hereinbefore, they were not named in the FIR. They were not identified in the dock. No witness has taken their names as the persons who committed any overt act. No recovery has been made from them. There is also no evidence that they had chased the deceased. As it had not been established that the appellants were members of an unlawful assembly, in our opinion, they could not have been convicted for commission of an offence under Section 302/149 I.P.C.

For the aforementioned reasons, the appellants cannot be held guilty for commission of an offence under Section 302/149 of the IPC. They are entitled to benefit of doubt.

The appeals are allowed. The judgment of conviction and sentence passed against the appellants are set aside. They are directed to set at liberty unless wanted in connection with any other case. There shall be no order as to costs.

Saturday, June 18, 2011

Conviction can be recorded on the basis of the dying declaration alone but the same must be wholly reliable

2006 (3) SCC 161 P. Mani Vs. State of Tamil Nadu

P. Mani vs State Of Tamil Nadu on 24 February, 2006

Bench: S Sinha, P Naolekar

CASE NO.:

Appeal (crl.) 1081 of 2005

PETITIONER:

P. MANI

RESPONDENT:

State of Tamil Nadu

DATE OF JUDGMENT: 24/02/2006

BENCH:

S.B. Sinha & P.P. Naolekar

JUDGMENT:

JUDGMENT

S.B. SINHA, J. 1.

The appellant was convicted on a charge of commission of an offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life as also a fine of Rs. 5000 by a judgment and order dated 10-01-2001 passed by Additional Sessions Court Kanyakumari District at Nagercoil in S.C. No. 183 of 1999.

2. The deceased was the wife of the Appellant. They were not in good terms. The deceased nurtured grudge against him in the belief that the Appellant was having affairs with another woman (PW-12) who is wife of his elder brother (PW-11). On 4-10-1998 at 10.45 a.m. some children had been witnessing television in the house of the Appellant. They came out therefrom stating that the deceased had asked them to go out of the house and bolted the door from inside, upon hearing the same PWs 1, 2 and the Appellant herein went back and broke open the door. Allegedly, the Appellant had poured kerosene on her and set fire to the deceased.

3. It is not in dispute that the door of the room was broken open. The said witnesses as also PWs 3 to 6 saw the deceased in flames. The fire was extinguished and she was taken to the government hospital. It is moreover not in dispute that the Appellant took her to the hospital along with other witnesses. They reached hospital at about 11.15 a.m. A dying declaration was recorded by a judicial Magistrate between the period 12.25 p.m. and 12.45 p.m. in the presence of a doctor (PW-15). A Head Constable (PW-23), in-change of Kulachal Police Station in the meantime received information about the said incident whereupon he arrived at the hospital recorded the statement of the deceased again from 14.15 p.m. to 14.45 p.m. on the basis whereof the First Information Report was lodged. A case under Section 307 of the Indian Penal Code (Code) was registered against the Appellant. In Column No. 7 of the said First Information Report the name of the Appellant was shown as accused. The Investigating Officer (PW-24) on 5-10-1998 made seizure of kerosene can, matchstick, iron bolt etc. She died in the government hospital at about 11.15 a.m. on 9-10-1998, whereafter the charge in the F.I.R. was altered to Section 302 of the Code. The Appellant was arrested in connection with the said case on 21-10-1998.

4. The Appellant was put on trial, a charge-sheet having been filed for commission of an offence under Section 302 of the Code. It is not in dispute that before the learned Sessions Judge, Kanyakumari District at Nagercoil in whose court the case was transferred for disposal, all the material witnesses turned hostile. The defence case was that she committed suicide as after undergoing a Histectomy operation, she suffered hormonal unbalance leading to mental stress and strain. She was said to have been not only suffering from mental illness and unsoundness of mind but also from depression. The son and daughter of the deceased categorically stated that the deceased had been suffering from mental illness and had made attempts to commit suicide by pouring kerosene and setting fire on her person on an earlier occasion but the same was prevented by PW-9.

5. The learned Sessions Judge convicted the Appellant relying only upon the dying declaration made by the deceased. The High Court on appeal preferred by the Appellant herein from the said judgment and order of conviction and sentence upheld the same inter alia holding that the dying declaration made by the deceased is reliable. The High Court moreover took into consideration also the circumstances that the Appellant had absconded from the place of occurrence from 4-10-1998 to 21.10.98. The learned court opined that it was for the Appellant herein to offer some explanation in terms of Section 106 of the Evidence Act as the occurrence took place inside a room and the Appellant was present therein. Only because the deceased had undergone Histectomy operation, the court was of the view, the same would not mean that she would lose her mental balance.

6. Mr. V.J. Francis, learned counsel appearing on behalf of the Appellant, would, inter alia, submit that the dying declarations were not reliable in view of the fact that the deceased died five days thereafter. The learned counsel also pointed out certain discrepancies in the two dying declarations. It was argued that in view of the fact that the witnesses did not support the prosecution case, the learned Sessions judge as also the High Court acted illegally in passing the judgment and order of conviction and sentence.

7. Mr. Subramonium Prasad, learned counsel appearing on behalf of the State, on the other hand, would argue that keeping in view of the fact that the dying declaration was made by the deceased shortly after she was brought to the hospital before the Magistrate, the High Court cannot be said to have committed an error in placing reliance thereupon. It was also submitted that although motive for commission of the offence could not be proved, the conviction and sentence can be upheld on the basis of the said dying declarations alone. Our attention has also ben drawn to the conduct of the Appellant.

8. There are certain striking features in this case. All the prosecution witnesses in unison stated that the children who were witnessing television came out the room saying that the deceased had bolted the same from inside. PW-1 Kumaradas and PW-2 Saravanadas have been engaged in the work of soaking coconut husk. They categorically stated that they together with the Appellant forced open the door and doused fire. Their neighbours, PWs 3 to 6, also made identical statements. It is furthermore not in doubt or dispute that the room had two doors and both were found to have ben locked from inside. The Investigating Officer admittedly stated that at the place of occurrence neither a gas stove nor a kerosene stove nor firewood was found. He had seized the bolt from inside the house in a molten condition. There were only two entrances in the front and back of the house.

9. The High Court, however, did not pay much credence to the said statements of the Investigating Officer and other witnesses inter alia on the ground that the burden of proof thereof lies upon the Appellant in terms of Section 106 of the Evidence Act as also, in view of the fact that the Appellant did not suffer any burn injury.

10. We do not agree with the High Court. In a criminal case, it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever.

11. The High Court furthermore commented upon the conduct of the Appellant in evading arrest from 4.10.1998 to 21.10.1998. The Investigating Officer did not say so. He did not place any material to show that the Appellant had ben adsconding during the said record. He furthermore did not place any material on records that the Appellant could not be arrested despite attempts having ben made therefore. Why despite the fact, the Appellant who had been shown to be an accused in the First Information Report recorded by himself was not arrested is a matter which was required to be explained by the Investigating Officer. He admittedly visited the place of occurrence and seized certain material objects. The Investigating Officer did not say that he made any attempt to arrest the Appellant or for that matter he had ben evading the same. He also failed and/or neglected to make any statement or bring on record any material to show as to what attempts had been made by him to arrest the Appellant. No evidence furthermore has been brought by the prosecution to show as to since when the Appellant made himself unavailable for arrest and/or absconding.

12. Absence of injury on the person of accused had been found by the High Court to be one of the grounds for believing the prosecution case. All the prosecution witnesses categorically stated that the fire was doused by pouring water. In that situation, no wonder, the Appellant did not suffer any burn injury. It is not the case of the prosecution that in fact any other person had suffered any burn injury in the process of putting out the fire. The incident admittedly took place inside a small room. It had two doors. The prosecution witnesses knocked both the doors. Their call to the deceased to open the door remained unanswered and only then they took recourse to breaking open the door. According to them, not only the Appellant herein was with them at that point of time, but also he took part in dousing the flames. Indisputably, he took the deceased to the hospital. If the version of the deceased in her dying declaration is accepted as correct, the witnesses and in particular the neighbours would have lodged a First Information Report and in any event, would not have permitted the Appellant to take her to the hospital.

13. The question is as to whether in the aforementioned situation reliance should be placed on the dying declaration. The son and daughter of the deceased categorically stated that she had ben suffering from depression and she had made an attempt to commit suicide a week prior to the date of occurrence. It is the positive case of the prosecution itself that she was not keeping good relation with the Appellant on the belief that he had an affair with another lady. The same admittedly has not been proved. If she had ben labouring under a false belief and if in fact she has ben suffering from depression for whatever reasons, the possibility of her making wrong statement before the Magistrate cannot be ruled out. In any event, the materials brought on records do not support the prosecution case, but support the defence.

14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeceable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have ben brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had ben nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has ben charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused.

15. We are, therefore, of the opinion that it is a fit case where the ``Appellant is entitled to the benefit of doubt.'' He shall be released to with if not required in any other case. ``The impugned judgments are set aside. The appeal is accordingly allowed.''

No adverse inference can be drawn against the prosecution for not examining witness.

2006 (1) SCC 191 Rajan Rai Vs. State of Bihar

Abstract: Three injured witnesses were not ready to depose on behalf of the prosecution, out of fear of the accused persons, as such merely because they could not be examined by the prosecution. The evidence of other witnesses cannot be discarded especially when their statement were recorded by police immediately after recording of the fardbeyan As such, no adverse inference can be drawn against the prosecution for not examining witness.

Supreme Court of India

Bench: B.N.Agrawal, A.K.Mathur

CASE NO.:

Appeal (crl.) 199 of 2000

PETITIONER:

Rajan Rai

RESPONDENT:

State of Bihar

DATE OF JUDGMENT: 10/11/2005

BENCH:

B.N.AGRAWAL & A.K.MATHUR

JUDGMENT:

J U D G M E N T

B.N. AGRAWAL,J.

The sole appellant was convicted by the trial court under Section 302 read with Section 34 of the Indian Penal Code [`IPC' for short] and sentenced to undergo imprisonment for life. He was further convicted under Sections 3 & 5 of the Explosive Substances Act, 1908 [hereinafter referred to as `the Act'] and sentenced to undergo rigorous imprisonment for a period of 10 years on each count. The sentences were, however, ordered to run concurrently. On appeal being preferred, High Court upheld the conviction. Hence this appeal by special leave.

Prosecution case, in short, was that on 10.6.1983 at about 7.45 p.m. when Joginder Singh [PW 9) came back to his house, he found his brother Bhola Singh sitting at the outer verandah of the house chatting with one Shobha Rai [DW 3]. At about 8.10 p.m. Joginder Singh heard sound of explosion and found that a bomb was thrown upon his brother Bhola Singh. Thereafter he saw the appellant Rajan Rai, accused Kameshwar Rai, Tileshwar Rai [since deceased], Sipahi Rai, Bankim Rai and Dasrath Rai having bags in their hands and throwing bombs on his brother as a result of which he fell down and succumbed to the injuries. PW 9 caught the appellant from his waist whereupon accused Kameshwar Rai threw a bomb upon him. Ram Ayodhya Rai [DW 1] Ram Gobind Sau [DW.2] and DW 3 also sustained splinter injuries on their hands and legs during the course of the occurrence. The occurrence was also witnessed by some other persons who were present there. Thereafter, the accused persons fled away. Motive for the occurrence disclosed is old grudge and animosity. The Parsa Police Station was at a distance of 1/4th kilometer from the place of occurrence, as such Baban Prasad Singh, Sub-Inspector of Police, [PW 17], who was in- charge of the said Police Station on that day, upon hearing sound of bomb explosion along with other police officials came to the place of occurrence and recorded fard-beyan of PW 9 at 8.25 p.m. in which the aforenoted facts were stated on the basis of which formal First Information Report [FIR] was registered at 9.30 p.m. on the same day in which names of all the six accused persons, including the appellant, were disclosed.

Police after registering the case took up investigation and on completion thereof submitted chargesheet against all the six accused on receipt whereof cognizance was taken and all of them were committed to the Court of Sessions to face trial. As the appellant Rajan Rai was absconding, his trial was separated from that of other five accused persons, out of whom Tileshwar Rai died before the commencement of trial, as such, the trial proceeded against the remaining four accused persons and the same was registered as Sessions Trial Nos. 245 of 1983 and 20 of 1984. Defence of the accused persons was that they were innocent, no occurrence much less the occurrence alleged had taken place and that they had no complicity with the crime, but were falsely roped in to feed fat the old grudge.

In the aforesaid Sessions Trial Nos. 245/1983 and 20/1984, which proceeded against the aforesaid four accused persons, as stated above, both the parties adduced evidence and upon conclusion thereof all the four accused persons were convicted under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life. They were further convicted under Sections 3 and 5 of the Act and sentenced to undergo rigorous imprisonment for 10 years on each count. The sentences were, however, ordered to run concurrently. Against the said judgment, appeals were preferred by the aforesaid four convicted accused persons. During the pendency of the appeals, the appellant could be apprehended and was put on trial giving rise to Sessions Trial No. 181 of 1985, during the course of which both the parties examined witnesses and upon conclusion of the trial, the trial court convicted the appellant, as stated above, against which judgment also an appeal was preferred before the High Court.

The appeals preferred by the four convicted accused persons challenging their conviction recorded in Sessions Trial No. 245/1983 and 20/1984 were decided by the High Court on 4th October, 1996 and the same were allowed and their convictions and sentences set aside, which attained finality as the matter was not carried further to this Court. The appeal filed by the appellant was taken up later on and by the impugned judgment, the High Court upheld his convictions and sentences. Hence this appeal by special leave.

Shri P.S. Mishra, learned Senior Counsel appearing in support of the appeal, attacked the impugned judgment on three counts. Firstly, it has been submitted that as in the appeal arising out of the earlier trial, the High Court acquitted other four accused persons on merit, it was not permissible for it to uphold conviction of the appellant on the basis of evidence of the same witnesses examined during the course of trial of the appellant. Secondly, in the facts and circumstances of the present case, the High Court was not justified in upholding the convictions of the appellant as the evidence of the four eyewitnesses, namely, PWs 2,3,5 and 9 could not have been relied upon, especially in view of the fact that their names were not disclosed in the FIR and the three eyewitnesses, namely, DWs 1, 2 and 3, who were injured witnesses named in the FIR, did not support the prosecution case so far as complicity of the appellant with the crime was concerned. Lastly, it has been submitted that there being only six accused persons out of whom four acquitted and prosecution of one Tileshwar Rai dropped, he having died before the commencement of trial, the conviction of the appellant under Section 302 read with Section 34 IPC was not justified as he could not have shared the common intention either with the four acquitted accused persons or even with Tileshwar Rai, whose prosecution was dropped. On the other hand, Shri B.B. Singh, learned counsel appearing on behalf of the State of Bihar, submitted that judgment of acquittal rendered by the High Court in appeals arising out of convictions of other four accused persons in their trial was inadmissible and irrelevant in the present trial. Further, the evidence of PWs 2,3,5 and 9 has been rightly relied upon by the trial court as well as the High Court. Lastly, learned counsel submitted that conviction of the appellant under Section 302 read with Section 34 IPC was warranted in law as the appellant could have shared the common intention with accused Tileshwar Rai, who died before the commencement of trial and his prosecution was simply dropped by virtue of his death which cannot be equated with the case of acquittal.

Coming to the first submission very strenuously canvassed by Shri Mishra, it would be necessary to refer to the provisions of Sections 40 to 44 of the Indian Evidence Act, 1872 [in short `the Evidence Act'] which are under the heading `Judgments of Courts of justice when relevant', and in the aforesaid Sections the circumstances under which previous judgments are relevant in civil and criminal cases have been enumerated. Section 40 states the circumstances in which a previous judgment may be relevant to bar a second suit or trial and has no application to the present case for the obvious reasons that no judgment order or decree is said to be in existence in this case which could in law be said to prevent the Sessions Court from holding the trial. Section 41 deals with the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable. Section 42 refers to the relevancy and effect of judgments, orders or decrees other than those mentioned in Section 41 in so far as they relate to matters of a public nature, and is again inapplicable to the present case. Then comes Section 43 which clearly lays down that judgments, order or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Evidence Act. As it has not been shown that the judgment of acquittal rendered by the High Court in appeals arising out of earlier sessions trial could be said to be relevant under the other provisions of the Evidence Act, it was clearly "irrelevant" and could not have been taken into consideration by the High Court while passing the impugned judgment. The remaining Section 44 deals with fraud or collusion in obtaining a judgment, or incompetency of a court which delivered it, and can possibly have no application in the present case. It would thus appear that the High Court was quite justified in ignoring the judgment of acquittal rendered by it which was clearly irrelevant.

This question had arisen before the Privy Council in the case of Hui Chi ming v. R, [1991] 3, All E.R. 897, wherein the Court was dealing with a case of murder trial. In the said case, principal offender was acquitted of murder, but convicted of manslaughter at a trial before the High Court of Hong Kong. The said order attained finality. Thereafter, another accused, who was facing trial arising out of the same very occurrence and whose trial was separated, was convicted for the charge of murder by the same High Court, ignoring the judgment of acquittal of the principal accused of the charge of murder, holding that the same was inadmissible. The application for leave to appeal against the conviction of the accused having been dismissed by the Court of Appeal of Hong Kong, the accused appealed by special leave to the Privy Council. In that case, conviction for the charge of murder was upheld by the Judicial Committee holding that evidence of the outcome of an earlier trial arising out of the same transaction was irrelevant and therefore inadmissible since the verdict reached by a different jury, whether on the same or different evidence, in the earlier trial amounted to no more than evidence of the opinion of that jury. Further, it was laid down that a person could properly be convicted of aiding and abetting an offence even though the principal offender had been acquitted and accordingly, the trial judge had rightly excluded evidence of the principal offender's acquittal of murder. A three Judges' Bench of this Court had occasion to consider the same very question in the case of Karan Singh vs. The State of Madhya Pradesh, AIR 1965 SC 1037, in which there were in all 8 accused persons out of whom accused Ram Hans absconded, as such trial of seven accused persons, including accused Karan Singh, who was appellant before this Court, proceeded and the trial court although acquitted other six accused persons, convicted the seventh accused, i.e., Karan Singh under Section 302 read with Section 149 IPC. Against his conviction, Karan Singh preferred an appeal before the High Court. During the pendency of his appeal, accused Ram Hans was apprehended and put on trial and upon its conclusion, the trial court recorded order of his acquittal, which attained finality, no appeal having been preferred against the same. Thereafter, when the appeal of accused Karan Singh was taken up for hearing, it was submitted that in view of the judgment of acquittal rendered in the trial of accused Ram Hans, the conviction of accused Karan Singh under Section 302 read with Section 149 IPC could not be sustained, more so when other six accused persons, who were tried with Karan Singh, were acquitted by the trial court and the judgment of acquittal attained finality. Repelling the contention, the High Court after considering the evidence adduced came to the conclusion that murder was committed by Ram Hans in furtherance of the common intention of both himself and accused Karan Singh and, accordingly, altered the conviction of Karan Singh from Section 302/149 to one under Section 302/34 IPC. Against the said judgment, when an appeal by special leave was preferred before this Court, it was contended that in view of the verdict of acquittal of accused Ram Hans, it was not permissible in law for the High Court to uphold conviction of accused Karan Singh. This Court, repelling the contention, held that decision in each case had to turn on the evidence led in it. Case of accused Ram Hans depended upon evidence led there while the case of accused Karan Singh, who had appealed before this Court, had to be decided only on the basis of evidence led during the course of his trial and the evidence led in the case of Ram Hans and the decision there arrived at would be wholly irrelevant in considering merits of the case of Karan Singh, who was appellant before this Court. This Court observed at page 1038 thus:-

" As the High Court pointed out, that observation has no application to the present case as here the acquittal of Ramhans was not in any proceeding to which the appellant was a party. Clearly, the decision in each case has to turn on the evidence led in it; Ramhans's case depended on the evidence led there while the appellant's case had to be

decided only on the evidence led in it. The evidence led in Ramhans's case and the decision there arrived at on that evidence would be wholly irrelevant in considering the merits of the appellant's case."

In that case, after laying down the law, the Court further considered as to whether the High Court was justified in converting the conviction of accused Karan Singh from Section 302/149 to one under Section 302 read with section 34 IPC after recording a finding that the murder was committed by Ram Hans in furtherance of common intention of both himself and accused Karan Singh. This Court was of the view that in spite of the fact that accused Ram Hans was acquitted by the trial court and his acquittal attained finality, it was open to the High Court, as an appellate court, while considering appeal of accused Karan Singh, to consider evidence recorded in the trial of Karan Singh only for a limited purpose to find out as to whether Karan Singh could have shared common intention with accused Ram Hans to commit murder of the deceased, though the same could not have otherwise affected the acquittal of Ram Hans. In view of the foregoing discussion, we are clearly of the view that the judgment of acquittal rendered in the trial of other four accused persons is wholly irrelevant in the appeal arising out of trial of appellant Rajan Rai as the said judgment was not admissible under the provisions of Sections 40 to 44 of the Evidence Act. Every case has to be decided on the evidence adduced therein. Case of the four acquitted accused persons was decided on the basis of evidence led there while case of the present appellant has to be decided only on the basis of evidence adduced during the course of his trial. Now the question arises as to whether the trial court as well as the High Court was justified in placing reliance upon the evidence of PWs 2,3,5 and 9. PW 9 is the informant himself and, being brother of the deceased, most competent person to have witnessed the occurrence that had taken place in the outer verandah of the house. PW 9 himself was injured in the said occurrence and was examined by Dr. B.P. Tribedi [PW 12] who found four injuries on his person caused by explosive substance, such as bomb. The Investigating Officer [PW 17] heard the sound of bomb explosion at the police station which was at a distance of 1/4th kilometer from the place of occurrence and arrived there at 8.25 p.m. ,i.e., only after 15 minutes of the occurrence which had taken place at 8.10 p.m. - and recorded fard-beyan of PW 9 on the basis of which formal FIR was registered at the police station. The informant - PW 9 in his substantive evidence in the court has supported the prosecution case disclosed by him in all material particulars. In the FIR he disclosed names of three witnesses specifically, who had received injuries, namely, DWs 1, 2 and 3. Apart from these injured witnesses, it has been stated in the FIR that there were other persons as well who had seen the occurrence. Immediately after the fard-beyan was recorded, the statements of PWs 2, 3 and 5 were recorded by the police without any delay whatsoever. In their statements made before the police, they have categorically supported the prosecution case disclosed in the FIR. They have also specifically stated that all the accused persons threw bomb upon the deceased as a result of which he received injuries and succumbed to the same. PW 9 stated in his evidence that the three injured witnesses, referred to above, were not ready to depose out of fear of the accused persons. Presence of three injured witnesses, namely, DWs 1, 2 and 3 at the place of occurrence has been accepted by them and their injuries have been proved by the two doctors PWs 15 and

16. In their evidence, DWs 1, 2 and 3 have simply stated that the appellant was not present at the place of occurrence. It appears that these three injured witnesses were not ready to depose on behalf of the prosecution out of fear of the accused persons, as such, merely because they could not be examined by the prosecution, the evidence of PWs 2, 3 and 5 cannot be discarded especially when their statements were recorded by the police immediately after recording of the fard-beyan. As such, no adverse inference can be drawn against the prosecution for not examining the three injured witnesses. The evidence of PWs 2, 3 and 5 is consistent with the prosecution case disclosed in the FIR as well as in the substantive evidence of the informant PW 9. In our view, the trial court and the High Court were quite justified in placing reliance upon their evidence. In view of the facts stated above, we are of the view that the prosecution has succeeded in proving its case beyond reasonable doubt. .

The last submission to be examined is whether the appellant could have been convicted under Section 302 read with Section 34 IPC for sharing the common intention with accused Tileshwar Rai for causing the death of the deceased. So far as accused Tileshwar Rai is concerned, he died before the commencement of trial, as such his prosecution stood dropped which cannot, in any manner, tantamount to acquittal. Shri Mishra submitted that the effect of dropping the prosecution of Tileshwar Rai would tantamount to his acquittal and relied upon a decision of this Court rendered in the case of Krishna Govind Patil Vs. State of Maharashtra, 1964 (1) SCR 678, to show that if all other persons were acquitted, one person alone could not be convicted under Section 302 read with section 34 IPC. In the said decision, a four Judges' Bench of this Court was considering a case in which there were in all four accused persons and all of them were acquitted by the trial court of the charge under Section 302 read with Section 34 IPC. The High Court upheld acquittal of the three accused persons, but convicted the fourth accused under Section 302 read with Section 34 IPC. When the matter was brought to this Court, the conviction was set aside as apart from these four accused persons, there was no other fifth accused and in view of the acquittal of three accused persons, the conviction of the appellant before this Court under Section 302 read with section 34 IPC could not be maintained as there was none else with whom he could have shared the common intention to cause death of the deceased. While acquitting, this Court observed that neither it was the prosecution case that there was any fifth accused person nor was there any evidence to that effect, meaning thereby that if there could have been any other accused person known or unknown other than the four persons tried, the conviction of the appellant before this Court could have been upheld as it could have been said that he shared the common intention with the fifth unknown accused person to commit the offence. To illustrate the point, if in a case First Information Report is lodged against four persons, known as well as unknown, and tried, out of whom three acquitted, one person can be convicted under Section 302 IPC simpliciter in case it is found that injury inflicted by him was fatal one, but be cannot be convicted under Section 302 with the aid of Section 34 IPC as in view of acquittal of the other accused persons, he cannot be said to have shared the common intention with anybody. On the other hand, if there are three persons, two named and one unknown, whose identity could not be ascertained even during the course of investigation, and upon being put on trial, out of the two named one gets acquitted, the other can be convicted under Section 302 with the aid of Section 34 IPC as it can be said that the convicted accused shared the common intention with the unknown person if there is evidence to that effect. In the present case, all the four eyewitnesses, namely, PWs 2,3,5 and 9, upon whom reliance has been placed by the two courts below, have candidly and consistently stated that the appellant and accused Tileshwar Rai along with other accused persons came to the house of the deceased and threw bomb upon him as a result of which he received injuries and succumbed to the same. We have already found that the evidence of these witnesses has been rightly found to be reliable by the trial court as well as the High Court so far as the appellant is concerned. We do not find any reason whatsoever to discard their evidence so far as participation of accused Tileshwar Rai in the crime is concerned. From the prosecution evidence it becomes clear that appellant shared common intention with accused Tileshwar Rai to cause death of the deceased. Thus, we have no difficulty in holding that if accused Tileshwar Rai would not have died, on the basis of evidence adduced by the prosecution, which is unimpeachable, he was liable to be convicted under Section 302 with the aid of Section 34 IPC, but merely because he died before the commencement of his trial and could not be tried, the appellant cannot take any advantage therefrom. For the foregoing reasons, we are of the view that the High Court has not committed any error in upholding convictions of the sole appellant under Section 302 read with Section 34 IPC as well as Sections 3 and 5 of the Act.

In the result, the appeal fails and the same is dismissed. Bail bonds of the appellant, who is on bail, are cancelled and he is directed to be taken into custody forthwith to serve out the remaining period of sentence for which a compliance report must be sent to this Court within one month from the date of receipt of copy of this order.

Tuesday, April 19, 2011

Whether the dying declaration is wholly reliable for conviction of an accused?

P. Mani Vs. State of Tamil Nadu (2006 (3) SCC 161)

Bench: S Sinha, P Naolekar

CASE NO.:

Appeal (crl.) 1081 of 2005

PETITIONER:

P. MANI

RESPONDENT:

State of Tamil Nadu

DATE OF JUDGMENT: 24/02/2006

BENCH:

S.B. Sinha & P.P. Naolekar

JUDGMENT:

JUDGMENT

S.B. SINHA, J. 1.

Sunday, April 10, 2011

Extra judicial confession before VAO admissible or inadmissible

Sivakumar Vs. State by Inspector of Police (2006 (1) SCC 714)

Bench: S Sinha, P Naolekar

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 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. 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 Prakash; M.O.I 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 Village Administrative Officer and Confession Statement to P.W.14 Inspector of Police and recovery of M.O.I Air Gun at the instance of the Appellant / Accused.

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:

" 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 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 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 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 "

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 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

Second Heads of villages shall report to the Police- 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 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 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 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 "

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. 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. 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 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."

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

In Piara Singh and Others v. 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."

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 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.