LAW OF EVIDENCE

SHIVAKUMAR V. STATE OF INSPECTOR

CASE ANALYSIS
 Case analysis of
SHIVAKUMAR VS. STATE BY INSPECTOR

Equivalent Citations: (crl.) 242 of 2005

Bench: S.B. Sinha, P.P. Naolekar

Date of Judgment: 08/12/2005

Petitioner: Shivakumar Counsel for the petitioner: Shri A.T.M. Sampath

Respondent: State by Inspector Counsel for the Respondent: Shri S. Prasad

Facts
On 3rd January, 1977 a notice inviting tenders for putting up of
IInd class restaurant and two snack bars at the International
Airport Bombay was issued by the first respondent who is a
corporate body established under the International Airport
Authority Act 43 of 1971. In the paragraph 1 of the notice it
was clearly stated that the sealed tenders in the prescribed
form are hereby invited from IInd class hoteliers having at
least 5 years experience for putting up and running of second
class restaurant and snack bars for a period of 3 years.
whereas Paragraph 8 of the notice clearly stated that the
acceptance of tender rest with the airport director and he does
not bind himself to accept any tender and can reject all or ally
of the tenders received without assigning any reason thereof.
There were six tenders in the response of the notice one of
them was from the 4th respondent offering a licensing fee of
Rs. 6666.66/ month others were from caf mahim, central
catering service, caf seaside, and caf excelsior offering much
less amount in comparison to 4th respondent but their tenders
were not complete since they were not accompanied by
respective Income tax certificates, affidavits of Immovable
property, and solvency certificates as required by cl(9) of the
terms and conditions of the tender form. The only tender that
was fully complied with the terms and conditions was that of
4th respondent but the offer was the highest amongst the all
tenders.
On dated 24th January, 1977 a letter was addressed to the
airport director by 4th respondent stating they had
considerable 10 years experience in catering to reputed
commercial houses, training centres, banks and factories, and
various institutions which appeared that it did not satisfy the
criteria of 2nd class restaurant of 5 years experience as
earlier set out in paragraph 1 of tender. On 19th April, 1977
the first respondent accepted the tender with certain
conditions according to which the 4th respondent deposited
Rs. 39,999.96 in the form of fixed deposit in the favour of 1st
respondent and the agreement was entered into 1st may, 1977.
The 4th respondent also got furniture, counters and showcase,
uniforms for the staff, purchased other things and engaged
necessary staffs for running the restaurant and two snack
bars. But the 1st respondent did not hand over the appropriate
sites since one Mr. A.S. Irani was running the same on these
sites under a previous contract refused to vacate the site.
Meanwhile, one K.S. Irani who owned caf excelsior filed a suit
in the city civil court Bombay against the respondents
challenging the decision of the 1st respondent accepting the
tender of the 4th respondent set out a notice of motion in this
regard for restraining 1st respondent in pursuing further. Also
obtained ad-interim injunction but after hearing respondents
the city civil court vacated ad- interim injunction and
dismissed the notice of motion by order. He made an appeal in
the high court which was also rejected. On the same day two
sites were handed over to the 4th respondent which was
different from the sites held by A.S. Irani. An injunction was
obtained by 1st respondent from city civil court against A.S.
Irani in further running the restaurant and snack bars or from
entering the premises except winding up of the restaurant and
snack bars. A.S. Irani preferred an appeal against the order of
injunction and was rejected and ultimately an appeal of special
leave in the Supreme Court was also turned down.

Subsequently he also filed another petition seeking mandatory

injunction for removal of 2 snack bars put up by the 4th
respondent. But however he did not succeed in obtaining ad-
interim injunction. The 4th respondent put up two snack bars
on the sites provided by 1st respondent and started running.
Soon after the dismissal of appeal of A.S. Irani and failure to
get a mandatory interim injunction the appellant filed a writ
petition challenging the decision of 1st respondent in
accepting the tender of 4th respondent. The writ petition was
moved to the single judge after giving proper notice to the
respondents and after hearing the parties the petition was
dismissed again it is appealed before division bench who after
giving necessary notice to the respondents and after
considering the affidavits submitted by them in reply to the
notice dismissed the appeal in limine. Ultimately a petition was
filed for appeal under special leave in Supreme Court since it
was felt that the matter is of seminal value court allowed
special leave and decided to hear the appeal at a further date
after giving a further opportunity to the parties to file their
respective affidavits.
 ISSUES

1. Whether the extra-judicial confession by the Appellant

before the Village Administrative Officer was admissible
and, thus, could it be relied upon?
2. Whether the appellant was guilty of the act?
3. Whether the appeal is liable to be dismissed?

CASES REFERRED IN THE

JUDGEMENT

Raja v. State AIR (1952) SC 54

re Lakshmanan (1971) I MLJ 178

In Madavarayachar v. Subba Rau (1891) 15 M 94

 CONTENTIONS

For the Appellant

1. The prosecution cannot be said to have proved the guilt of the Appellant who was
convicted only on the basis of purported circumstantial evidences.

2. 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.

3. 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.

4. The purported extra-judicial confession which was recorded by a person not authorized
therefore 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.

5. PW-2, 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.

6. 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.

7. 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.

For the Respondents

In the contentions it was supported that 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.

RELEVANT LEGAL PROVISIONS

Arms Act, 1962

Indian Evidence Act - Section 26
Madras Village Courts Act, 1889 - Section 7
Madras Village Panchayats Act, 1950 - Section 132I
Indian Penal Code (IPC) - Section 27, Section 174, Section 302, Section 304 Code of
Criminal Procedure (CrPC), 1882 - Section 528(6)
Code of Criminal Procedure (CrPC) (Amendment) Act, 1898 - Section 528, Section 528(6)
Code of Criminal Procedure (CrPC) (Amendment) Act, 1973 - Section 40, Section 40(2),
Section 162, Section 164, Section 406Section 407, Section 408, Section 409, Section 410,
Section 411
Arms Rules, 1962
Criminal Practice Rules - Rule 72
Criminal Rules of Practice and Orders, 1931
Madras Village Police Regulations, 1816 - Regulation Regulation 6
Madras Village Police Regulations, 1821
Constitution of India - Article 227

DECISION

The courts correctly came 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.

REASONING and EVIDENCE ON RECORD

PW-1 in his deposition categorically stated that he had seen the Appellant, the deceased and
Ravi kumar 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.

PW-2 also appeared 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-5, the Village Administrative Officer 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 was apparent 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, Ravi kumar and Murugaraj stayed for
about 2-3 days. PW-7 was declared hostile. Prakash (PW-8) was the partner in Sri Krishna
Polachi 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.

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, the court was 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-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.

The said rule under 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." 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.
CONCLUSION

The chain of circumstantial evidence connecting the appellant with the

crime is complete with no missing link suggesting consistency with it, any
reasonable hypothesis of the appellants innocence the circumstances are
sufficient to bring home the offence of culpable homicide 1 in question to
the appellant beyond reasonable doubt and the High Court has rightly
convicted them.

In the instant case all the circumstances relied upon by the prosecution
have been conclusively established by the prosecution. They are specific
and on a clinching nature and all of them irresistibly lead to the conclusion
that the appellant was guilty of the offence. All the circumstances which
have been conclusively established are consistent only with the
hypothesis of the guilt of the appellant and are totally inconsistent with
his innocence. Not only in the cross-examination of the various
prosecution witnesses but even during the arguments, nothing has been
pointed out as to why any of the witnesses for the prosecution should
have falsely implicated the appellant in such a crime committed by the
appellant. None of the witnesses had any motive to falsely implicate him.

The Supreme Court in the case of Gambhir v. State of Maharashtra 2 laid

down the following tests to corroborate circumstantial evidence:

(1) The circumstances from which an inference of guilt is sought to be

drawn, must be cogently and firmly established.

(2) Those circumstances should be of a definite tendency unerringly

pointing towards guilt of the accused.

(3) The circumstances, taken cumulatively, should form a chain so

complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and none
else. The circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis than that

1 Golam Majibuddin v. State of West Bengal, 1972 Cr. L.J. 1324 at p. 1345(S.C.).
2 AIR 1982 SC 1157.
of the guilt of the accused. The circumstantial evidence should not only be
consistent with the guilt of the accused but should be inconsistent with his
innocence.

All the above mentioned tests are complied with in the present case as
has been discussed earlier. Therefore, it can be said that the courts
decision to hold the appellant guilty based upon the circumstantial
evidence which was presented before the court was a correct one.

Also, Extra judicial confession under Section 26

In the present case, the court in ruling the decision in favour of the
respondents, has relied on the extra judicial confession made by the
Appellant to the Village Administrative Officer. The appellant had
confessed to the Village Administrative officer (VAO) of his guilt and 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. Thereafter, the appellant was
handed over to the Inspector of Police by the VAO along with the said
extra judicial confession. The appellant contended that the purported
extra judicial confessionwas recorded by a person not authorised therefore
in view of Rule 72 of Criminal Rules of Practice (CRP). Rule 72 of CRP
states thus:

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 appellant has also relied on the decision of the Division Bench of the
Madras High Court in Raja v. State, by Sub-Inspector of Police, Kalaiyar
Koli Police Station3, wherein a refence has been made in Re Lakshmanan4
in which it has been laid down to the effect that a village headman is not a
magistrate under the Code of Criminal Procedure. The court has rejected
all the arguments of the court and has held the evidence admissible. The
author agrees with this decision of the court.

3 1995 2 L.W.(Cri.) 513

4 (1971) I MLJ 178
Rule 72 of Criminal Rules of Practice

The author agrees with the courts finding that Rule 72 of CRP has lost all
its significance after the enactment of Code of Criminal Procedure, 1973.
Section 26 of the Indian Evidence Act states that:

Confession by accused while in custody of police not to be proved against

him.- No confession made by any person whilst he is in the custody of a
police- officer, unless it be made in the immediate presence of a
Magistrate, shall be proved as against such person.

Explanation - In this section" Magistrate" does not include the head of a

village discharging magisterial functions in the Presidency of Fort St.
George 5[ or elsewhere, unless such headman is a Magistrate exercising
the powers of a Magistrate under the Code of Criminal Procedure,
1882[ (10 of 1882 ).

This concept of village magistrate existed before the 1973 Act. Under
the current Act, the village administrative officer may have a power to
report an offence committed within the jurisdiction of the police station
where he is posted but this power does not make him a person in
authority. Section 405 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.
Section 40 (2) (iii) 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.
Therefore, since an officer under Section 40 includes all the members of
the Panchayat, it is clear that there is no one who has been empowered
with magisterial powers. The 1973 Act has deleted the requirement of the

5 Code of Criminal Procedure, 1973

post of Village Magistrate. Therefore, the court has rightly held that Rule
72 of CRP has become redundant and nugatory.

Post of Village Administrative Officer

Under Section 266, the confession to be always inadmissible, it should be

made before a police officer. A Village Administrative Office certainly does
not fit the descriptions of a police officer. By carrying out his duty to
inform the Police or the magistrate under Section 407, the village
administrative officer does not act as a public servant removable only by
or with the sanction of the local government nor does he acts in his
capacity as a magistrate. The village administrative officer has not been
conferred with any power of a magistrate under the 1973 code.

Therefore, since the post of village magistrate no longer exists and also
because the village administrative officer is not acting in any magisterial
capacity, the court was right in its decision that the extra-judicial
confession made by the applicant to the village administrative officer is
admissible.

6 Indian Evidence Act, 1872

7 Code of Criminal Procedure, 1973