JUDGMENT : [C. Praveen Kumar, J.] 1. The sole accused in Sessions Case No. 80 of 2013 on the file of X Additional District and Sessions Judge, Visakhapatnam at Anakapalle, is the appellant herein. He was tried for the offence punishable under Section 302 of Indian Penal Code [‘I.P.C.’] for causing the death of one Guntla Ramana [‘deceased’] on 08.02.2013 at 9:30 hours in Sammangi Apparao’s Zirayath land, Bapadupalem Village, Paravada Mandal. By its Judgment, dated 22.09.2014, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 500/-in default to suffer simple imprisonment for three months. 2. The facts, as culled out from the evidence of the prosecution witnesses, are as under: i) PW2 is the wife of the deceased; PW3 is the junior paternal aunt of PW2, while the accused is the younger brother of PW2. ii) It is said that, on 08.02.2013 at about 10.00 a.m., the accused and the deceased went to painting work and, thereafter returned home at 6.00 p.m. on that day; while PW2 and her mother, by name, Sanyasamma [PW3] along with deceased were present in the house, the accused came to their house at 7.00 p.m. and took the deceased with him for consuming toddy. At about 9.30 p.m., the accused alone returned to the house and informed PW2 that the deceased fell down in the land of one Sammangi Apparao of Bapadupalem Village. Then, PW2, PW3 and others proceeded to the said place and noticed the deceased on the ground with injuries on the back and head. The injured was shifted in the Auto of PW4 to Primary Health Centre, Parawada, for treatment. It is said that, the injured succumbed to injuries while undergoing treatment at Parawada. In the same auto, they brought back the deceased to the house and, thereafter, the accused absconded. The injured was shifted in the Auto of PW4 to Primary Health Centre, Parawada, for treatment. It is said that, the injured succumbed to injuries while undergoing treatment at Parawada. In the same auto, they brought back the deceased to the house and, thereafter, the accused absconded. iii) While so, on 09.02.2013, while PW1 – the Village Revenue Officer, Bharanikam Village of Parawada Mandal, was at Gram Panchayat Office, the accused approached him and made an extra-judicial confession stating that, on the previous day night, a dispute arose between him and his brother-in-law [deceased] and in the course of the said dispute, he beat him with a casuarina stick on the head; thereafter went to the house and informed PW2 that the injured fell down in the land of one Sammangi Apparao of Bapadupalem Village. He also confessed about taking the injured to the hospital; the treatment given and the deceased succumbing to the injuries at Primary Health Centre, Parawada. The said statement of the accused was reduced into writing and the signature of the accused was also obtained in the statement. Thereafter, PW1 handed over the accused at Parawada Police Station along with report and the statement of the accused. Ex.P1 is the report given by him along with the statement of the accused enclosing a copy of the statement of the Accused. iv) PW15 – the Sub-Inspector of Police, submits that basing on the statement of PW1 and Ex.P1, a case in Crime No.25 of 2013 of Parawada Police Station, came to be registered for the offence punishable under Section 302 I.P.C. Ex.P7 is the First Information Report. Thereafter, he along with staff visited the scene of offence and posted a Police Constable to guard the scene. He then secured PW2 to PW4 and recorded their statements. He then held inquest over the dead body in the presence of mediators. Ex.P2 is the inquest report. At the time of inquest, he examined PW1 to PW4 and recorded their statements. Thereafter, he sent the dead body for post-mortem examination. v) PW14 – C.I.C., N.T.R. Area Hospital, Anakapalle, conducted autopsy over the dead body on 09.02.2013 at 2.05 p.m. and issued Ex.P6 – post-mortem certificate. According to him, the cause of death was due to cardio respiratory arrest secondary to head injury with a large subdural hemarize. Thereafter, he sent the dead body for post-mortem examination. v) PW14 – C.I.C., N.T.R. Area Hospital, Anakapalle, conducted autopsy over the dead body on 09.02.2013 at 2.05 p.m. and issued Ex.P6 – post-mortem certificate. According to him, the cause of death was due to cardio respiratory arrest secondary to head injury with a large subdural hemarize. vi) PW15, who continued with the investigation, arrested the accused and pursuant to the confession made, the accused lead them to the scene of offence from where the casuarina stick [M.O.1] came to be seized in the presence of mediator under Ex.P4. He also prepared a rough sketch of the scene, which is marked as Ex.P8. PW15 also seized M.O.2 – one pair of chappals at the scene and M.O.3 to M.O.8 in the presence of PW12 [mediator]. After completing the investigation and collecting all the necessary documents, he filed a charge-sheet, which was taken on file as P.R.C. No. 4 of 2013 on the file of V Metropolitan Magistrate, Anakapalle. 3. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the matter was committed to the Sessions Court under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the accused, to which, the accused pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution examined PW1 to PW15 and got marked Ex.P1 to Ex.P8, beside marking M.Os.1 to M.O.8. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, however, no evidence was adduced in support of his plea. 5. Believing the statement of the accused made before PW1, coupled with the evidence of PW2 and PW3 that the accused and the deceases were seen last together, the learned Sessions Judge convicted the accused. Challenging the same, the present appeal came to be filed. 6. The learned Counsel for the Appellant mainly submits that, there is absolutely no legal evidence available on record connecting the accused with the crime. She further submits that, the entire case is based on extra-judicial confession, which is a weak piece of evidence. Challenging the same, the present appeal came to be filed. 6. The learned Counsel for the Appellant mainly submits that, there is absolutely no legal evidence available on record connecting the accused with the crime. She further submits that, the entire case is based on extra-judicial confession, which is a weak piece of evidence. In any event, she would submit that, since, there is no intention or enmity between the accused and the deceased and as the incident took place due to quarrel, pleads that it is a case where the nature of offence has to be altered. 7. On the other hand, the learned Public Prosecutor opposed the same contending that the evidence of PW2 and PW3 coupled with the evidence of PW6 amply establish the involvement of the accused in the crime. According to him, the evidence of the prosecution witnesses would show that the accused was ‘last seen’ with the deceased at the scene of offence, for which there is no explanation from the accused. Having regard to the above circumstances, he would contend that the prosecution has proved its case beyond reasonable doubt. Viewed from any angle, he would submit that the order of conviction requires no interference. 8. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond doubt? 9. As seen from the record and also the findings given by the learned Sessions Judge, the entire case is based on two circumstances, namely, (1) the accused and the deceased being “last seen” together, and (2) “extra-judicial confession” made before PW1. I. “Last Seen” 10. Admittedly, the prosecution did not place on record any evidence to show that there was any ill-will or enmity between the accused and the deceased. On the other hand, the evidence of PW2, who is the wife of the deceased, categorically shows that the accused and the deceased used to go everyday for painting work and also used to consume alcohol together. The evidence of PW2, PW3, PW4 and PW6 would show that on the date of incident, accused and deceased were seen together. 11. On the other hand, the evidence of PW2, who is the wife of the deceased, categorically shows that the accused and the deceased used to go everyday for painting work and also used to consume alcohol together. The evidence of PW2, PW3, PW4 and PW6 would show that on the date of incident, accused and deceased were seen together. 11. PW6, is an independent witness, who deposed that, on 08.02.2013 he along with seven others together went for painting work and returned to village at 6.00 p.m. Thereafter, himself along with PW5 went to Chittuboina Palem on T.V.S. moped, consumed alcohol and returned back to village at 7.30 p.m. On the way, they noticed accused and deceased together going towards Chittuboina Palem on foot. When enquired, he came to know that they were going to consume toddy. Then, he dropped from the vehicle, went along with the accused and deceased and consumed toddy at the house of one Vadisala Narsayamma. Thereafter, the accused and deceased left the place while he remained there for another 15 minutes. 12. Coming to the evidence of PW2 and PW3, their evidence discloses that, on the fateful day morning at about 10.00 a.m., both the accused and the deceased left together for painting work and returned at 6.00 p.m. At about 7.00 p.m., while PW2, PW3 and others along with accused were sitting, the accused came and took the deceased with him for consuming toddy. Both of them went on foot. At about 9.30 p.m., accused alone came to the house and informed that the deceased fell on the ground near the land of Sammangi Apparao and, thereafter, all of them proceeded to the scene of offence and shifted the injured to the hospital, where, he died. 13. From the evidence of these two witnesses, it is very clear that all of them saw the accused and deceased together even at 7.00 p.m. and at 9.30 p.m. the accused alone came to the house informing about the deceased falling on the ground near the land of Sammangi Apparao. Therefore, the first circumstance relied upon by the prosecution, namely, the accused being ‘last seen’ in the company of the deceased stands established. II. “Extra-Judicial Confession” 14. Therefore, the first circumstance relied upon by the prosecution, namely, the accused being ‘last seen’ in the company of the deceased stands established. II. “Extra-Judicial Confession” 14. Coming to the second circumstance, namely, extra-judicial confession made before PW1, as seen from the evidence available on record, the incident in question took place on 08.02.2013 and immediately on the very next day morning at about 9.30 a.m. the accused is said to have confessed his involvement in the commission of the offence. In the said confession, he narrates the manner in which the incident took place and also about the false information given by him to PW2 with regard to the cause of death. The said statement is placed on record as Ex.P1 and in-fact the said statement was made the basis to register a crime. Though, PW1 was subjected to lengthy cross-examination, but, nothing has been elicited to discredit his testimony. Though, extra-judicial confession is a weak piece of evidence, the Hon’ble Supreme Court has time and again held that, if the confession is made before a person, who is reliable, the same can be taken as one of the circumstance and may be made the basis in a given set of circumstances to convict the accused. 15. At this stage, it would be appropriate to refer to the judgment of the Hon’ble Supreme Court in Siva Kumar v. State By Inspector of Police, (2006) 1 Supreme Court Cases 714; (2006) 1 Supreme Court Cases (Cri) 470, wherein, the admissibility of extra judicial confession made before the Village Revenue Officer came to be considered. Though Rule 72 of the Madras High Court prohibits Village Magistrate from reducing or writing any confession or statement whatever made by an accused person after the Police investigation has begun, however, held that the said rule has lost all its significance in view of the fact that under the Code of Criminal Procedure or any other statute or statutory regulations, the village headman is not a Village Magistrate and that the Village Administrative Officer, has not been conferred with any power of a Magistrate by reason of the provisions of the Code of Criminal Procedure or otherwise and that he has no role to play in any manner with the investigation of a criminal case and accordingly held that, Rule 72 of the Criminal Rules of Practice has become redundant and nugatory. Holding so, the Hon’ble Apex Court held that they do not see any reason why an extra-judicial confession made before a Village Administrative Officer be not accepted, if it satisfies the test of credibility. It would be appropriate to extract the same, which is as under: “35. 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: "72. 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." 36. 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. 37. 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. 38. 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. 39. 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. 40. We do not, thus, see any reason as to why such an extrajudicial 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. 40. We do not, thus, see any reason as to why such an extrajudicial 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. Pregada Balanagu v. Krosuru Kotayya, AIR 1937 Mad 578 . 41. 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. 43. 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. 44. Extra-judicial confession may or may not be a weak evidence. Each case is required to be examined on its own fact. In Sidharth 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." 45. 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." 46. 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." 46. 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] 47. 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.” 16. In Gura Singh v. State of Rajasthan, 2001(2) SCC 205 , it was held by the Hon’ble Apex Court that: “Extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. That the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. It is not open to the court trying the criminal case to start with presumption that extra-judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession.” 17. In view of the judgment of the Hon’ble Supreme Court in Siva Kumar’s [cited 6th supra] and Gura Singh’s and as the statement came to be made on the very next day before the Village Revenue Officer, without any inducement or threat, and in the absence of any material to show that it was brought into existence by the prosecution, we see no reason to disbelieve the extra judicial confession made before the Village Revenue Officer. Therefore, the two circumstances relied upon by the prosecution, namely, the ‘extra-judicial confession’ made before PW1, and the accused being ‘last seen’ in the company of the deceased, which is prior to the incident, coupled with the false explanation given by the accused with regard to cause of death of the deceased and he showing the place where the dead body was lying, amply establish the involvement of the accused in the incident. 18. But, the question is whether the trial court was right in convicting the accused for the offence punishable under Section 302 I.P.C. 19. 18. But, the question is whether the trial court was right in convicting the accused for the offence punishable under Section 302 I.P.C. 19. As seen from the evidence available on record, more particularly, the evidence of PW2 and PW3 who are the family members of the accused, none of them spoke about motive or ill-will by the accused to cause the death of the deceased. On the other hand, both of them deposed that the accused and deceased used to go in the auto of PW4 together to reach their place of work. Their evidence nowhere indicates existence of any motive or ill-will between the accused and the deceased. On the other hand, it appears that, both of them are very closely related to each other i.e., the accused being the brother-in-law of the deceased. Hence, we hold that there was no intention for the accused to cause the death of the deceased. 20. At this stage, it would be appropriate to refer to Ex.P1, which is the only material available to test the case of the prosecution. The said statement shows that after returning from painting work at 6.00 p.m., the accused and the deceased proceeded towards Chittuboina Palem to have toddy. On the way, one Nooka Apparao [PW6], who was coming opposite to them on the motorcycle of PW5, questioned them as to where are they going and, then, they replied him that they were going to have a toddy. PW6 got down from the motorcycle of PW5 and accompanied them to Chittuboina Palem Village and all the three of them had toddy at one Vadisala Narsayamma for Rs.10/-. Subsequently, PW6 stood there, while the accused and deceased went to Appala Narasamma [PW8] at about 8.30 p.m. and bought a quarter beer for Rs.70/-. Both of them had the same and while returning to village and when reached near casuarina tope of one Malla Madugula Ravi, an altercation took place between them, as regards their families, more so, when there was some comment against the mother of the deceased. It is said that, the accused took a casuarina stick out of the bundle of cutting sticks found at the scene and beat his brother-in-law [deceased] on his head, as a result of which he fell down. It is said that, the accused took a casuarina stick out of the bundle of cutting sticks found at the scene and beat his brother-in-law [deceased] on his head, as a result of which he fell down. When he fell down, the accused beat on the back and head with the stick and, thereafter, left to his house leaving his brother-in-law [deceased] at the scene. 21. From the contents of Ex.P1, it is very clear that, both of them in a drunken state were proceeding to their house together and there was some argument between them. When the deceased was continuously abusing him in filthy language, the accused got angry and beat the deceased on the head. When he fell down, he beat the deceased with stick on the back and also on the head. Therefore, it cannot be said without any hesitation that the incident in question was preceded by a quarrel and in the course of said quarrel which occurred as the accused was using abusive language against the family members, the accused beat him. 22. The doctor who conducted post-mortem examination noticed four injuries, out of which, two are abrasions and two contusions. The two contusions were found on the left occipital area of scalp, and, right temporal area of scalp with a fracture of left occipital bone and right temporal bone. But, strangely, in the cross-examination he admits that no X-ray of the dead body of the scalp portion was taken to give an opinion that left occipital bone and right temporal bone were fractured. He also opined that, the cause of death was due to head injury with a large subdural hemorrhage. 23. In Yomeshbhai Pranshankar Bhatt Vs. State of Gujarat, 2011(2) ALD (Crl.) 238 (SC), the Apex Court held as under: “When accused had no pre-meditation to kill deceased or cause any bodily harm or injury to deceased, everything happened on spur of moment, possibility of accused losing self control on some provocative utterances of deceased cannot be ruled out and in such case the accused is liable to be convicted under Sec.304 Part II instead of Section 302 of IPC.” 24. Taking into consideration the circumstances under which the incident took place and in the absence of any intention or motive to cause the death of the deceased and as the incident occurred in a spur of moment without any pre-meditation, it can be safely held that the accused may be only having knowledge that such injury would lead to death. 25. Having regard to the manner in which the incident in question took place, we are of the opinion that the case of the appellant/accused falls squarely under Section 304 Part-II of IPC. Hence, the conviction under Section 302 IPC is set aside and the appellant is convicted under Section 304 Part-II IPC and sentenced him to undergo rigorous imprisonment for a period of seven years. The period undergone by the accused as remand prisoner shall be given set off under Section 428 Cr.P.C. Consequently, the appellant/accused shall be set at liberty forthwith on completion of seven years imprisonment, if not required in connection with any other case or crime. 26. With the above modification, the appeal is allowed partly. Consequently, miscellaneous petitions, if any, pending shall stand closed.