(The judgment of the court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Special Judge under S.C. and S.T.(PA) Act, 1989, Dharmapuri at Krishnagiri made in S.C.No.97 of 2006, whereby the sole accused/appellant stood charged under Section 302 IPC and Section 3(2)(v) of S.C. and S.T.(PA) Act, 1989, tried and found guilty under Section 302 IPC and awarded life imprisonment and to pay a fine of Rs.3000/-, in default to undergo two years R.I., while she was acquitted of the other charge under the provisions of S.C. and S.T. (PA) Act. 1989.
2.The short facts necessary for the disposal of this appeal can be stated as follows:
a)P.W.1 is the Village Administrative Officer of Soolamalai Village. On 17.09.2004 at about 7.00 a.m., when he was in his office with P.W.2, the village menial, the accused/the appellant herein Guna @ Gunavathi appeared before him and gave confessional statement, which was marked as Ex.P.1, where she has stated that she had illicit intimacy with the deceased Shanmugam and though he was requested to stop the frequent visit to her house, he ignored her request and had been pestering her for sexual coitus. Aggrieved over the same, when he was sleeping in her house at about 3.00 a.m. on 17.09.2004, she cut his neck. Her statement was recorded by P.W.1, which was marked as Ex.P.1.
b)P.W.1 prepared Ex.P.2, the complaint. P.Ws.1 and 2 took the accused to the place of occurrence and verified the same. Then, P.W.1 along with the deceased proceeded to the respondent police station, where P.W.17, the Sub Inspector of Police, was present. P.W.1 produced the accused along with Ex.P.1 and Ex.P.2. P.W.17, on receipt of Exs.P.1 and P.2, registered a case in Crime No.322 of 2004 under
Sections 302 IPC and Section 3(2)(v) of S.C. and S.T. (PA) Act, 1989. Ex.P.17, the F.I.R. was despatched to the Court. On instructions from the Superintendent of Police, the case was taken up for investigation by P.W.18, the Deputy Superintendent of Police.
c)P.W.18, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.3, the observation mahazar and Ex.P.19, the rough sketch. The place of occurrence and the dead body were photographed through P.W.14, the photographer. M.O.8 (series) photos and negatives were marked. P.W.18 conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.21, the inquest report. Then, the accused came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.20. Pursuant to the confessional statement, the accused produced M.O.1, bill hook, which was recovered under a cover of mahazar. She has also produced M.O.2, saree, which was worn by her at the time of occurrence and the same was also recovered under a cover of mahazar. The accused was sent for judicial remand. The dead body was sent to the Government Hospital, Krishnagiri for the purpose of autopsy.
d)P.W.6, the Doctor attached to the Government Hospital, Krishnagiri, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained to vital organs.
e)P.W.18 examined the witnesses and recorded their statements. The community certificates of the deceased Shanmugam, P.W.3 Annamalai @ Jadayan and the accused were also received, which were marked as Exs.P.9 to P.11 respectively. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 18 witnesses and also relied on 22 exhibits and 8 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under
Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which she has flatly denied as false. On the side of the defence, one witness was examined and 2 documents were marked. On completion of the evidence on both sides, the trial court heard the arguments advanced on either side, scrutinized the materials available and took the view that the prosecution has proved the case beyond reasonable doubt and so far as the charge of murder was concerned, it has awarded life imprisonment along with fine and default sentence and insofar as the other charge, the accused was acquitted and hence this appeal has arisen at the instance of the appellant.
4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution had no direct evidence to offer, but it has rested its entire case on two circumstances; that the first one was the extra judicial confession and the second one was the recovery of M.O.1, the weapon of crime; that the prosecution came forward with the case stating that the occurrence has taken place at about 3.00 a.m. on 17.09.2004; that she went to the office of P.W.1, the Village Administrative Officer at about 7.00 a.m.; that it is admitted by the prosecution that the office of the Village Administrative Officer is situated within 1 Km. from the house of the accused; that if to be so, there could not be any delay of 4 hours for the lady to walk the distance and thus, it is highly unnatural; that P.W.2, the village menial, has categorically spoken that it was the practice of the Village Administrative Officer to come to the office at about 10.00 a.m. every day; and that if to be so, there was no need for the V.A.O. to be at the office at 7.00 a.m., which would be indicative of the fact that the police has actually taken the accused and thereafter, the V.A.O. on instructions, recorded Ex.P.1 to suit the convenience of prosecution.
5.Added further the learned counsel that in the instant case, the occurrence has taken place in the house of the accused; that there were neighbours and also friends of the deceased, but no one has been examined to prove the case; that the prosecution rested its case on the recovery of M.O.1, bill hook and also M.O.2, saree; that so far as the recovery was concerned, it cannot be believed; that P.W.2, who was examined as one of the witnesses, has categorically admitted that he did not know where from it was recovered and thus, it was only cooked up affairs; that it is pertinent to point out that so far as the motive for the occurrence was concerned, it was alleged that there was illicit intimacy between the accused and the deceased; that if to be so, atleast one independent witness could have been examined, but the prosecution examined two witnesses, one was the father of the deceased and the other was the relative and except them, no one was examined; that all would go to show that the prosecution has not proved the case beyond reasonable doubt and that all pieces of evidence placed before the trial court were not worth mentioning and under these circumstances, the appellant is entitled for acquittal in the hands of this court.
6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
7.It is not in controversy that the dead body of one Shanmugam, was found in the house of the accused. Following the registration of the case, inquest was conducted by the Investigating Officer. Thereafter, the dead body was subjected to post-mortem by P.W.6, the Doctor, who has given his categorical opinion that the deceased died of shock and haemorrhage due to the injuries sustained to vital organs. The fact that the deceased died out of homicidal violence was not disputed by the appellant and under these circumstances, without any impediment, it could be recorded so.
8.True it is, in the instant case, in order to substantiate the charges levelled against the appellant/accused, the prosecution had no direct evidence to offer, but it had rested its case exclusively on circumstantial evidence. The first part of the evidence was the extra judicial confession alleged to have been given by the accused to P.W.1, the Village Administrative Officer of the said village. P.W.2 is the village menial attached to P.W.1. The court, before accepting the evidence that the extra judicial confession is the reliable piece of evidence, must apply two tests. Firstly, the circumstances attendant in which the accused has given extra judicial confessional and secondly, whether the evidence of the person to whom extra judicial confession alleged to have been given has inspired the confidence of the court. If these tests are applied, the court is satisfied that this piece of evidence could be accepted and reliable also.
9.P.W.1 is admittedly the Village Administrative Officer from the same village and P.W.2 is the menial attached to P.W.1. According to P.Ws.1 and 2, when they were in the office of P.W.1 at about 7.00 a.m. on 17.09.2004, the accused appeared before them and gave confessional statement, which was recorded as Ex.P.1 and thereafter, P.W.1 prepared Ex.P.2, the report and produced her before the police station at 10.00 a.m. It is pertinent to point out that the contention put forth by the learned counsel for the appellant is that from the place of occurrence, namely the house of the accused, the office of the Village Administrative Officer is situated in 1 Km. distance and it is quite unnatural that the lady took 4 hours to reach the office of the V.A.O. This contention cannot be countenanced for the simple reason that what made her to wait or what made her to go to the office of the V.A.O. after four hours, was actually within the special knowledge of the accused and thus, when a particular relevant fact is within the knowledge of that particular person, it is for the said person, who is only competent, to speak about the same. In the instant case, it is for the accused to explain as to which made her to wait for four hours, since it was within her knowledge. Hence this cannot be a reason to doubt the veracity of the evidence of P.Ws.1 and 2. Further, the contention of the learned counsel for the appellant is that according to P.W.2, P.W.1 used to come to office at 10.00 a.m. and hence how he happened to be at the office at 7.00 a.m. on the date of occurrence. The court is of the considered opinion that that was neither asked to P.W.1, the V.A.O. or P.W.2. It is pertinent to point out that P.Ws.1 and 2 belonged to the same village, to which both the accused and the deceased also belonged. Further, there is no reason as to why P.Ws.1 and 2 should come before the court of law to give evidence against the accused and no circumstance or reason is also noticed by the court. Under these circumstances, the evidence of P.Ws.1 and 2 could be believed and Ex.P.1 was the reliable document, which could be accepted by the court safely.
10.So far as the recovery of M.O.1, billhook, is concerned, after confession was recorded by the Investigating Officer, she took the police party along with P.Ws.1 and 2 and produced M.O.1, billhook and also M.O.2, saree which was worn by her at the time of occurrence. Now the contention put forth by the learned counsel for the appellant that P.W.2 could not say as to where from it was recovered, cannot be countenanced. A perusal of the cross examination of P.W.2 would clearly indicate that he was standing nearby when she took the billhook from the haystack and handed over the same. Thus, it would be quite clear that he was also present at the time of production of M.O.1, billhook by the accused and the recovery of the same by the Investigating Officer.
11.The other strong circumstance, in the considered opinion of the court, is that the occurrence has taken place in the night hours in the house of the accused, where the deceased was actually sleeping and this fact is not disputed. Under these circumstances, it is for her to explain as to how the death of the deceased had happened, but no explanation was forthcoming. All would go to show that the non examination of neighbour or any friend of the deceased will not in any way affect the prosecution case, since the occurrence has taken place inside the closed house of the accused at 3.00 a.m. Further, P.W.10, who happened to be the son of the accused, was also examined by the prosecution. But, he has turned hostile and one could not expect him to speak against his mother. Under these circumstances, the evidence that was adduced and narrated above, in the considered opinion of the court was sufficient to point out the guilt of the accused. It was a case where the deceased was sleeping and at that time, the accused cut his neck and caused his death. Thus, it cannot but be termed only as murder. The trial court was perfectly correct in coming to the conclusion, which in the considered opinion of the court cannot be interfered with either factually or legally. This court is unable to notice anything in favour of the appellant/accused.
12.In the result, this criminal appeal fails and the same is dismissed, confirming the judgment of conviction and sentence of the trial court.
(M.C., J.) (M.V., J.) 09.01.2009 Index : Yes Internet : Yes vvk To
1.The Principal Sessions Judge/ Special Judge under S.C. & S.T. (PA) Act, Dharmapuri at Krishnagiri.
2.The Deputy Superintendent of Police, Bargur Kandhikuppam Police Station, Krishnagiri Taluk & District.
3.The Additional Public Prosecutor, High Court, Madras.
M.CHOCKALINGAM, J.
AND M.VENUGOPAL, J.
vvk CRL.A.NO.177 OF 2008 09.01.2009