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2009 DIGILAW 2119 (MAD)

Mary Xavier v. State by Inspector of Police

2009-07-06

C.NAGAPPAN, CHITRA VENKATARAMAN

body2009
Judgment : C. Nagappan, J. Appellant Mary Xavier is the Accused No.2 in Sessions Case No.160 of 2007 on the file of Additional District Sessions Judge, Fast Track Court No.3, Thiruvallur and she has preferred this appeal challenging the conviction and sentence imposed on her by judgment dated 17. 2008 in the case. For the sake of convenience, in this Judgment, the appellant will be referred to as Accused No.2. 2. Charges under Sections 302 IPC as against A1 David Arokiaraj alias Doss; 302 read with 34 IPC as against A2 Mary Xavier, 201, 203 read with 34 IPC were framed against both the accused. The learned Additional Sessions Judge found both A1 David Arokiaraj and A2 Mary Xavier guilty of the offence under Section 302 IPC and convicted and sentenced each of them to undergo Life Imprisonment and to pay a fine of Rs.50,000/- each, in default, to undergo four years Simple Imprisonment each for the said offence and found both the accused guilty of the offence under Section 201 IPC and convicted and sentenced each of them to undergo two years Rigorous Imprisonment and to pay a fine of Rs.2,000/-each, in default, to undergo imprisonment for three months each and further found A2 Mary Xavier guilty of the offence under Section 203 IPC and convicted and sentenced her to undergo one year Rigorous Imprisonment for the said offence. 3. To prove its case, the prosecution examined P.Ws.1 to 19, marked Exs.P.1 to P.25 and produced M.Os.1 to 41. 4. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows: Accused No.2 Mary Xavier is the wife of deceased Arulnathan. P.W.1 Immanuvel is the nephew of deceased Arulnathan. A1 David Arokiaraj is also a nephew of deceased Arulnathan. Arulnathan is the maternal uncle of A2 Mary Xavier and they got married and have children. Arulnathan brought P.W.1 Imanuvel from Krishnagiri to Chennai and got an employment for him in Krishna Advertisement. A1 David Arokiaraj was also brought from Krishnagiri to Chennai by Arulnathan and both of them were residing with the family of Arulnathan in the same house. After one and half years, PW.1 Immanuvel brought his mother and took up a separate residence near the house of Arulnathan and A1 David Arokiaraj also was residing with P.W.1 Immanuvel in his house. After one and half years, PW.1 Immanuvel brought his mother and took up a separate residence near the house of Arulnathan and A1 David Arokiaraj also was residing with P.W.1 Immanuvel in his house. A1 David Arokiaraj was employed in petrol bunk and later started a computer center and purchased a motor-cycle. A2 Mary Xavier was employed as a teacher in school and she used to leave her infant with the mother of P.W.1 Immanuvel and go to school and on return, would take back the child with her. The mother of P.W.1 Immanuvel went for Temple festival to the native place and P.W.1 Immanuvel and A1 David Arokiaraj were alone in the house. P.W.1 Immanuvel used to return from work at 8 pm and one day he came earlier and saw both A1 David Arokiaraj and A2 Mary Xavier together in the house and he saw them together for third time in the house and on that occasion, A1 David Arokiaraj was lying in the cot and A2 Mary Xavier was standing near him keeping her hands on the wall. On seeing them, P.W.1 Immanuvel asked A1 David Arokiaraj as to why A2 Mary Xavier visited the house to see A1 David Arokiaraj when she did not visit while he was unwell and A1 David Arokiaraj replied as to why he is suspecting them since A2 Mary Xavier is their Aunt only. P.W.16 Constable Saravanan was on his beat on 16. 2006 in Madhvaram and at 6.30 pm, when he came through Mango grove near Madhavaram Easwaran Koil Street, he found accused Nos.1 and 2 standing near the motor-cycle in close proximity by A1 David Arokiaraj putting hands on shoulder of A2 Mary Xavier and he warned them and sent them away. On the occurrence day in the evening at 6 O clock, P.W.1 Immanuvel along with A1 David Arokiaraj and another went to hotel for taking food and A1 David Arokiaraj received a call on his Tata Indicom cell phone and he went out to speak in cell phone and did not come back and P.W.1 Immanuvel and his friend returned home. P.W.6 Punitha is the wife of P.W.2 Velpandian and they were residing opposite to the house of Arulnathan and on 16. P.W.6 Punitha is the wife of P.W.2 Velpandian and they were residing opposite to the house of Arulnathan and on 16. 2006 at 5 am, A2 Mary Xavier knocked their gate and P.W.2 Velpandian and PW.6 Punitha came out and A2 Mary Xavier told them that somebody had attacked her husband and stolen the jewels from the house. P.W.2 Velpandian went there and saw Arulnathan lying on the mat in the hall with bleeding injuries. P.W.2 Velpandian asked his wife P.W.2 Punitha to inform the same to police and he went out in search of a doctor. A2 Mary Xavier went to Madhavaram M2 Police Station at 6 am on 16. 2006 and gave Ex.P17 written complaint and P.W.17 Inspector Joseph received it and registered a case in Crime No.335/2006 under Sections 302 and 380 IPC and prepared Ex.P18 First Information Report. He reached the occurrence place at 6.15 am and prpared Ex.P3 Observation mahazar in the presence of P.W.5 Jayaraj and another. Ex.P19 is the Rough Sketch prepared by him. He seized M.O.1 Blood stained pillow under Ex.P4 mahazar in the presence of same witnesses. He summoned the services of Finger Print Expert and Sniffer dog. He examined P.W.1 Immanuvel, P.W.2 Velpandian, P.W.6 Punitha and P.W.7 Bharathan and some other witnesses and recorded their statements. He conducted inquest on the body of Arulnathan from 8 am to 10 am in the presence of panchayatars and prepared Ex.P20 Inquest Report. He sent the body for post-mortem by giving requisition. P.W.10 Dr.Aravind conducted post-mortem on the body of Arulnathan at 3.15 pm on 16. 2006 and found the following: "1. Brown irregular abrasion 8 x 1-1.5 cm on the right lateral side of Mid part of the back. 2. Laceration 1.5 x 1 cm x bone deep on the left forehead. 3. Horizontal laceration extending from Left Parietal region of the scalp to the Left temporal region of the scalp measuring 4 x 2 cm x bone deep with 2 cm tag of scalp skin with subcutaneous tissue attached to the proximal end of the laceration. On reflexion of scalp dark red scalp deep contusion on the left temporo parietal region of the scalp with a C shaped fissured fracture on the left temporal of parietal bone present. On reflexion of scalp dark red scalp deep contusion on the left temporo parietal region of the scalp with a C shaped fissured fracture on the left temporal of parietal bone present. On dissection of the skull defuse dark red sub dural hemorrhage and subarchinoid hemorrhage present on the left temporo parietal region of the brain. The Base of the skull is intact. Heart: Normal in size pericardium intact. Cut section contains fluid blood in both side chambers. Valves and coronaries are normal. Lungs: Normal in size, cut section congested. Hyoid Bone: Intact. Larynx trachea: Empty. Stomach: 100 grams of yellow coloured partly digested cooked rice particles. No definite smell. Mucosa congested. Spleen: Normal in size, cut section congested. Liver: Normal in size, cut section congested. Kidneys: Normal in size, cut section congested. Spinal column & Pelvis: Intact. Bladder: Empty. He expressed opinion that the deceased would appear to have died of Head Injury. Ex.P11 is the Post-Mortem Certificate issued by him. P.W.17 Inspector Joseph arrested A1 David Arokiaraj at 4 pm on 16. 2006 near Milk Dairy Bus Stand and enquired him and recorded the confession statement at 4.30 pm given by him in the presence of P.W.9 Balamurugan and another. Ex.P7 is the admissible portion. P.W.17 Inspector Joseph seized M.Os.5, 6 clothes worn by A1 David Arokiaraj under Ex.P10 mahazar in the presence of same witnesses. A1 David Arokiaraj took them to the house, in which, he was living with P.W.1 Immanuvel and took and produced M.Os.7 to 37 and P.W.17 Inspector Joseph seized them under Ex.P8 mahazar in the presence of same witnesses. M.O.38 are the photographs taken by P.W.13 Photographer Sekar. P.W.17 Inspector Joseph arrested A2 Mary Xavier in her house at 6 pm and at 6.15 pm enquired her and recorded the confession statement given by her in the presence of P.W.9 Balamurugan and another. Ex.P6 is the admissible portion. A2 took and produced M.O.39 Iron Pipe and he seized it under Ex.P9 mahazar in the presence of same witnesses. He sent the accused to judicial remand on the same day. He took A2 Mary Xavier on Police custody and enquired her and on the information obtained, he examined P.W.3 Selvaganapathy and P.W.4 Hemanathan and recorded their statements. P.W.17 Inspector Joseph examined P.W.8 Lawrence and some other witnesses and recorded their statements. He again enquired A2 Mary Xavier and recorded her further confession statement. He took A2 Mary Xavier on Police custody and enquired her and on the information obtained, he examined P.W.3 Selvaganapathy and P.W.4 Hemanathan and recorded their statements. P.W.17 Inspector Joseph examined P.W.8 Lawrence and some other witnesses and recorded their statements. He again enquired A2 Mary Xavier and recorded her further confession statement. Ex.P12 is the admissible portion. A2 Mary Xavier took and produced M.Os.2 to 4 and he seized them under Ex.P16 mahazar in the presence of P.W.15 Mohan and another. He took A1 David Arokiaraj on Police custody and enquired him on 26. 2006 and recorded the further confession statement given by him in the presence of P.W.15 Mohan and another. A1 David Arokiaraj took and produced iron pipe and he seized it. Ex.P22 is the Observation Mahazar and Ex.P23 is the Rough sketch prepared by him to show the place. P.W.17 Inspector Joseph altered the case into one under Section 203 IPC also and sent Ex.P21 Alteration Report. He seized M.Os.40, 41, clothes of the deceased taken from the body and produced before him by postmortem constable under Form 95. On the written request of P.W.17 Inspector Joseph, the Chief Judicial Magistrate, Chengalpet directed Judicial Magistrate No.II, Ponneri to record the judicial confession of A2 Mary Xavier. P.W.14 Judicial Magistrate Tmt.Kalaiponni directed the production of A2 Mary Xavier before her on 7. 2006 and A2 Mary Xavier was brought there from Vellore Prison and produced before her at 3 pm and P.W.14 Kalaiponni enquired A2 Mary Xavier by putting questions in closed doors by revealing her identity and A2 Mary Xavier expressed her wish to give confession and P.W.14 Tmt.Kalaiponni gave her twenty four hours as time for reflection and directed the jail authorities to keep her in separate cell and further directed to produce her the next day. Accordingly, A2 Mary Xavier was produced before her on 3 pm on 7. 2006 and P.W.14 Judicial Magistrate Kalaiponni, in close doors, enquired A2 Mary Xavier by putting questions and after satisfying herself that A2 Mary Xavier was voluntarily willing to give confession statement, recorded the confession statement given by her and also gave a certificate underneath it that the confession was voluntarily made and A2 Mary Xavier admitted it to be correct. Ex.P14 is the entire proceedings of the confession statement of A2 Mary Xavier. Ex.P14 is the entire proceedings of the confession statement of A2 Mary Xavier. P.W.17 Inspector Joseph retired and P.W.19 Inspector Jegadeeswaran continued the investigation and examined P.W.10 Dr.Aravind and recorded his statement. He also examined some other witnesses and recorded their statements. He completed the investigation on 28. 2006 and filed final report against the Accused Nos.1 and 2. 5. The accused Nos.1 and 2 were questioned under Section 313 Cr.P.C and they denied complicity. A2 Mary Xavier filed written statement and Ex.D1 was marked and no witness was examined on the side of defence. 6. The Trial Court convicted and sentenced Accused Nos.1 and 2 as stated earlier. Challenging the conviction and sentence imposed on A2 Mary Xavier, she has preferred the present appeal. .7. The prosecution case is that A1 David Arokiaraj and A2 Mary Xavier, in furtherance of their common intention to kill Arulnathan, A1 David Arokiaraj beat Arulnathan with Iron Pipe on the head resulting in his death at the time of occurrence. Nobody has witnessed the occurrence and the case is based on circumstantial evidence. Though several circumstances were let in, the whole case mainly rests on the judicial confession given by A2 Mary Xavier before the Judicial Magistrate. 8. Mr.V.Gopinath, learned Senior Counsel appearing for the Appellant/Accused No.2 Mary Xavier, contended that the Magistrate did not ascertain the voluntary character of the confession and the Magistrate did not put question as to why A2 Mary Xavier wanted to make the confession and failed to inform her that she would not be sent back to Police custody in case if she did not make the confession statement and it was a mere mechanical enquiry and the confession was not voluntary and both the Investigation Officers in cross-examination have stated that A2 Mary Xavier did not express her willingness in writing to give judicial confession and they have not explained as to how they came to know about the willingness of A2 Mary Xavier to make a judicial confession and Accused No.2 was not produced from the jail and the confession was given under coercion from the Police and it is not voluntary. In support of his submission, the learned Senior Counsel relied on three decisions which are detailed below. .9. In support of his submission, the learned Senior Counsel relied on three decisions which are detailed below. .9. Per contra, Mr.Babu Muthu Meeran, learned Additional Public Prosecutor, submitted that the Judicial Magistrate put eighteen questions to A2 Mary Xavier when she was produced on the first day to ensure whether she wanted to make a confession voluntarily and in the second day proceedings also, the Magistrate by way of preliminary examination put eight questions to A2 Mary Xavier as to whether she wants to make the confession voluntarily and after satisfying the same, the Magistrate started recording the confession statement and at its foot, the Magistrate had made a Memorandum that the confession was voluntarily made by A2 Mary Xavier and the Magistrate was also examined as a witness at the Trial and the Magistrate testified that she had recorded it after satisfying herself that the confession was being made voluntarily and there was full and adequate compliance of the provisions of Section 164 Cr.P.C and the judicial confession is worthy of credence and the Investigation Officer would have different sources to know that the accused was desiring to confess and he is not obliged to reveal the same and A2 Mary Xavier was in Central Prison, Vellore and was produced from there before the Judicial Magistrate and the confession is voluntary and he also placed reliance on decisions in support of his submission. 10. The decision of the Supreme Court in Shivappa V. State Of Karnataka [1995 Scc (Cri) 323] was mainly relied on by the learned Senior Counsel appearing for the Appellant/Accused No.2 in support of his submission. In the above decision, Their Lordships of the Supreme Court considered the judicial confession recorded under Section 164 Cr.P.C by the Judicial Magistrate and held as follows: "8. From a perusal of the evidence of Pw.17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had administered the caution to the appellant that he was not bound to make a statement and that if he did make a statement that may be used against him as evidence but PW 17 did not disclose to the appellant that he was a Magistrate and that the confession was being recorded by him in that capacity nor made any enquiry to find out whether he had been influenced by anyone to make the confession. PW 17 stated during his deposition in court: "I have not stated to the accused that I am a Magistrate" and further admitted: "I have not asked the accused as to whether the police have induced them (Chithavani) to give the statement." The Magistrate, PW 17 also admitted that "at the time of recording the statement of the accused no police or police officials were in the open court. I cannot tell as to whether the police or police officials were present in the vicinity of the court". From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his deposition recorded in court it is further revealed that the Magistrate did not lend any assurance to the appellant that he would not be sent back to the police custody in case he did not make the confessional statement. Circle Police Inspector Shivappa Shanwar, PW 25 admitted that the sub-jail, the office of the Circle Police Inspector and the police station are situated in the same premises. No contemporaneous record has been placed on the record to show that the appellant had actually been kept in the sub-jail, as ordered by the Magistrate on 21-7-1986 and that he was out of the zone of influence by the police keeping in view the location of the sub-jail and the police station. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22-7-1986 before the Magistrate. That apart, neither on 21-7-1986 nor on 22-7-1986 did the Munsif Magistrate PW 17 question the appellant as to why he wanted to make the confession or as to what had prompted him to make the confession. It appears to us quite obvious that the Munsif Magistrate, PW 17 did not make any serious attempt to ascertain the voluntary character of the confessional statement. The failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the confession, impels us to hold that the evidence on the record does not establish that the confessional statement of the appellant recorded under Section 164 CrPC was voluntary. The cryptic manner of holding the enquiry to ascertain the voluntary nature of the confession has left much to be desired and has detracted materially from the evidentiary value of the confessional statement. The cryptic manner of holding the enquiry to ascertain the voluntary nature of the confession has left much to be desired and has detracted materially from the evidentiary value of the confessional statement. It would, thus, neither be prudent nor safe to act upon the confessional statement of the appellant. ......" 11. The above decision was referred to by the Apex Court in the subsequent decision in Ayyub V. State Of U.P [2002 SCC (Cri) 673] and it was observed that in every case, the Judicial Magistrate has to put questions intended to be put under sub-section (2) of Section 164 Cr.P.C and the questions prescribed by the High Court and no element of casualness should be allowed to creep in and the Judicial Magistrate should be fully satisfied that the confessional statement which the accused wants is in fact and in substance voluntary. A Division Bench of this Court in the decision in V.C.Shyamala V. State [(2009) 1 MLJ (Cri) 866] has referred to and has followed the above decisions. 12. Accused No.2 Mary Xavier was arrested in this case on 16. 2006. From the material records, it is seen that the Investigation Officer gave requisition to the Chief Judicial Magistrate, Chengalpet to nominate a Judicial Magistrate for recording the confession statement of A2 Mary Xavier under Section 164 Cr.P.C. in the case. The learned Chief Judicial Magistrate by order dated 26. 2006 nominated the Judicial Magistrate No.II, Ponneri to record the confession statement of A2 Mary Xavier. The Judicial Magistrate No.II, Ponneri issued Memo on 30.6.2006 to the Superintendent of Central Prison, Vellore to produce A2 Mary Xavier on 7. 2006 at 3 pm. Accordingly, A2 Mary Xavier was produced before the Judicial Magistrate at 3 pm on 7. 2006. Ex.P14 is the entire proceedings relating to recording of confession statement of A2 Mary Xavier by Judicial Magistrate No.II, Ponneri. The Judicial Magistrate No.II, Ponneri directed all to leave the Court hall and the doors and windows were closed and Magisterial Clerk and Office Assistant alone were present in the Court hall and the Magistrate put eighteen questions in Tamil language to A2 Mary Xavier by way of preliminary examination to ensure whether she would make voluntary confession statement. The Judicial Magistrate No.II, Ponneri directed all to leave the Court hall and the doors and windows were closed and Magisterial Clerk and Office Assistant alone were present in the Court hall and the Magistrate put eighteen questions in Tamil language to A2 Mary Xavier by way of preliminary examination to ensure whether she would make voluntary confession statement. The questions put to A2 Mary Xavier during the preliminary examination and the answers given by Accused No.2 and recorded by Judicial Magistrate are translated in English and they are extracted below: "Q.1. What is your name? 1.A.1. My name is Mary Xavier. 2.Q.2. What is the name of your father/husband? 1.A.2. My husbands name is Arulnathan. 2.Q.3. Do you know as to before whom you are produced? 1.A.3. I am aware as to before whom I have been produced. 2.Q.4. Do you know that I am a Magistrate? 1.A.4. I know that you are a Magistrate. 2.Q.5. Do you know that I am not a Police Officer? 1.A.5. I know that you are not a Police Officer. 2.Q.6. Whether Police are present in the Court hall? 1.A.6. Police are not present in the Court hall. 2.Q.7. Where from you have been brought? 1.A.7. Now I have been brought from Vellore prison. 2.Q.8. From which place you were arrested for the first time by the Police. 1.A.8. Police arrested me at my residence in Azeez Nagar, Madhavaram. 2.Q.9. After arrest where have you been kept by the Police. 1.A.9. After arrest I have been kept in Women Police Station near Moolakkadai Depot. 2.Q.10. Whether you were kept in lock-up in Police Station? 1.A.10. I was not kept in lock-up in Police Station. 2.Q.11. Whether you know that you cannot be made as an Approver? 1.A.11. I know that I cannot become an Approver. 2.Q.12. Are you going to give a statement? 1.A.12. I am going to give a statement. 2.Q.13. Were you put to any physical torture by Police to give confession statement or whether the Police offered you any benefit or concession to make a confession statement. 1.A.13. I was not put to any physical torture and no benefit or concession was offered to me by Police to make a confession statement. 2.Q.14. Whether Police told you that you would be pardoned in case of making confession statement? 1.A.14. 1.A.13. I was not put to any physical torture and no benefit or concession was offered to me by Police to make a confession statement. 2.Q.14. Whether Police told you that you would be pardoned in case of making confession statement? 1.A.14. Police did not tell me that I will be pardoned in case of making confession statement. 2.Q.15. Do you understand that you are not obliged to give confession statement? 1.A.15. I understand that I am not obliged to give confession statement. 2.Q.16. Do you know that if you give a confession statement it may be used against you in evidence in the case? 1.A.16. I know that if I give a confession statement now it would be used against me later in evidence in the trial of the case. 2.Q.17. Do you want to give a confession statement now? 1.A.17. I want to give a confession statement now. 2.Q.18. Do you understand that you have been given twenty four hours time for giving confession statement? A.18. I do understand that twenty four hours time has been granted to me for giving confession statement." P.W.14 Judicial Magistrate No.II, Ponneri addressed a letter to the Superintendent of Central Prison, Vellore with instruction to keep the prisoner/Accused No.2 Mary Xavier in a separate cell and see that no police official or other person had access to her and she further directed to produce A2 Mary Xavier before her on 7. 2006 at 3 pm. 13. Accordingly, A2 Mary Xavier was produced before the Judicial Magistrate No.II, Ponneri at 4.15 pm on 7. 2006 and the Magistrate directed all the persons except the Magisterial clerk and the office assistant to leave the Court hall and the windows and doors were closed and the Magistrate again put eight questions to A2 Mary Xavier in Tamil by way of preliminary examination and the questions and answers as recorded by the Magistrate are translated in English and extracted below:- "Q.1. Were you kept in a separate Cell? 1.A.1. I have been kept in a separate Cell. 2.Q.2. Were you approached by police yesterday? 1.A.2. No police approached me yesterday. 2.Q.3. Are you aware that there is no compulsion on you to give confession statement? 1.A.3. I am aware that there is no compulsion on me to give confession statement. 2.Q.4. Were you kept in a separate Cell? 1.A.1. I have been kept in a separate Cell. 2.Q.2. Were you approached by police yesterday? 1.A.2. No police approached me yesterday. 2.Q.3. Are you aware that there is no compulsion on you to give confession statement? 1.A.3. I am aware that there is no compulsion on me to give confession statement. 2.Q.4. Whether there is any other person present other than the Magistrate and the clerk inside the Court? 1.A.4. No other person except the Magistrate and clerk is present inside the Court hall. 2.Q.5. Whether you know that you cannot become an Approver? 1.A.5. I know that I cannot become an Approver. 2.Q.6. Do you want to give a confession statement? 1.A.6. I do want to give a confession statement. 2.Q.7. Do you understand that the confession statement you are going to give would be used against you in evidence in the trial of the case. 1.A.7. I do understand that the confession statement to be given by me would be used against me in evidence in the trial of the case. 2.Q.8. Do you want to give a confession statement? A.8. I do want to give a confession statement." 14. The provision in Section 164 CrPC emphasizes an enquiry by the Judicial Magistrate to ascertain the voluntary nature of the confession and he has to put such questions from which he could ascertain the voluntary nature of the confession and adequate compliance is imperative. Before proceeding to record the confession statement, a searching enquiry must be made from the accused to ensure that there is no extraneous influence in the mind of the accused and he should give the accused sufficient time for reflection before he is asked to make his statement. 15. Before proceeding to record the confession statement, a searching enquiry must be made from the accused to ensure that there is no extraneous influence in the mind of the accused and he should give the accused sufficient time for reflection before he is asked to make his statement. 15. In the facts of Shivappas Case, referred to above, the Magistrate did not disclose his official identity; the Magistrate did not ask the accused as to whether police had induced the accused to give statement; the Magistrate could not tell as to whether police officials were present in the vicinity of the Court; the Sub Jail and the Police Station were situated in the same premises; no contemporaneous record was produced to show that the accused was kept in the Sub Jail and he was out of the zone of influence by the police and in addition, the Magistrate did not inform the accused that he would not be sent back to police custody and no question as to why the accused wanted to make the confession statement was put and in such circumstances, Their Lordships of the Supreme Court held that the Magistrate did not make any serious attempt to ascertain the voluntary character of the confession statement and the enquiry to ascertain the voluntary nature of the confession was held in cryptic manner and the confessional statement was kept out of consideration. 16. In this case, before recording the confession statement of A2 Mary Xavier, PW.14 Tmt.Kalaiponni, Judicial Magistrate No.II, Ponneri had put questions in Tamil on both days by way of preliminary examination to ensure whether A2 Mary Xavier wants to make a confession voluntarily and recorded the answers in her own handwriting and A2 Mary Xavier had put her signature below each answer. In fact, we find from Ex.P14 Confession Proceedings and the oral testimony of PW.14, the Judicial Magistrate that after disclosing to A2 Mary Xavier that she is a Magistrate, she had administered caution to A2 Mary Xavier that she was not bound to make a confession statement and if she makes a confession statement, it would be used against her in evidence during the first day proceedings and PW.14, the Judicial Magistrate gave twenty four hours time to A2 Mary Xavier for reflection and when Accused No.2 appeared on the second day, once again PW.14, the Judicial Magistrate administered the same caution and inspite of the warning, A2 Mary Xavier volunteered to make a confession statement and only thereafter, the confession statement was recorded by PW.14, the Judicial Magistrate in her own handwriting. 17. In the certificate that was appended to the confession statement, PW.14, the Judicial Magistrate has categorically stated that she had explained to A2 Mary Xavier that she was not bound to make a confession and if she did so, it might be used as evidence against her and she believed that the confession was voluntarily made. PW.14, the Judicial Magistrate has further stated that she read over the statement to the person making it and admitted by her to be correct and that it contained a full and true account of the statement made by her. It is true that P.W.14 Judicial Magistrate did not tell A2 Mary Xavier that she would not be sent back to police custody in case if she did not make confession statement and also did not specifically question A2 Mary Xavier as to why she wanted to make confession. In this context, the recent decision of the Supreme Court in Ram Singh V. Sonia And Others [ (2007) 3 SCC 1 ] is relevant and in the facts of that case, the Judicial Magistrate failed to record the question whether there was any pressure on the person who give the confession statement and Their Lordships held that the said defect is cured by Section 463 of Code of Criminal Procedure as the mandatory requirement provided under Section 164(2) CrPC has been complied with. For better appreciation, the relevant portion is extracted below: " 23. ....... Therefore, it is evident from the certificate appended to the confessional statement by PW 62 that the confessional statement was made by the accused voluntarily. For better appreciation, the relevant portion is extracted below: " 23. ....... Therefore, it is evident from the certificate appended to the confessional statement by PW 62 that the confessional statement was made by the accused voluntarily. Of course, he failed to record the question that was put by him to the accused whether there was any pressure on her to give a statement, but PW 62 having stated in his evidence before the court that he had asked the accused orally whether she was under any pressure, threat or fear and he was satisfied that A-1 was not under any pressure from any corner, that in the room in which the said confessional statement was recorded it was only he and PW 32 who were present and none else and that no police officer was available even within the precincts of the hospital. The said defect, in our view, is cured by Section 463 as the mandatory requirement provided under Section 164(2), namely, explaining to the accused that he was not bound to make a statement and if a statement is made the same might be used against him has been complied with and the same is established from the certificate appended to the statement and from the evidence of PW 62. Therefore, in the light of our discussion above, we have no hesitation in holding that the judicial confession (Ext. 187) having been recorded according to the procedure set out in Section 164 read with Section 281 and the defect made while recording the same being curable by Section 463, it is admissible in evidence." 18. In this case, as already seen, the mandatory requirement prescribed under Section 164(2) of Code of Criminal Procedure, namely, explaining to the accused that she was not bound to make a statement and if a statement is made the same might be used against her has been complied with as evident from the certificate appended to the statement in Ex.P14 Confession Proceedings and from the testimony of PW.14 Judicial Magistrate. Of course, the learned Judicial Magistrate did not tell A2 Mary Xavier that she would not be sent back to police custody in case if she did not make confession statement and also did not specifically question A2 Mary Xavier as to why she wanted to make confession. 19. Of course, the learned Judicial Magistrate did not tell A2 Mary Xavier that she would not be sent back to police custody in case if she did not make confession statement and also did not specifically question A2 Mary Xavier as to why she wanted to make confession. 19. In so far as the other contentions of the appellant that Accused No.2 Mary Xavier was not produced from judicial custody and she did not express her willingness in writing to give judicial confession are concerned, A2 Mary Xavier herself in Ex.P14 Proceedings has replied that she was produced from Vellore Central Jail and she was also kept in separate Cell. The Supreme Court in the decision in State of Maharashtra V. Damu And Others [2000 Scc (Cri) 1088] has observed that it is a worthless exercise to ponder over how or from which source the Investigation Officer would have come to know that the accused was desiring to confess and the Investigation Officer can have different sources to know that fact and he is not obliged to state in court the same, particularly in view of the ban contained in Section 162 of the Code of Criminal Procedure. In view of the above, there is no merit in the above contentions. 20. Another circumstance which reinforces the conclusion about the confession being voluntary is that it was not retracted at the earliest opportunity. The confession of A2 Mary Xavier was recorded on 7. 2006. Charges were framed and read over and explained to the accused by the Sessions Judge. That was the earliest opportunity, at which the accused could retract the confession, but A2 Mary Xavier did not do so on this occasion, though she pleaded not guilty of the charges and at the trial, A2 Mary Xavier was defended by three lawyers. The prosecution evidence was closed and the accused were questioned under Section 313 CrPC on 24. 2008. It was during such questioning, A2 Mary Xavier for the first time retracted the confession and took up a plea in the written statement that she had made it under duress of the police and this belated plea is not credible. The prosecution evidence was closed and the accused were questioned under Section 313 CrPC on 24. 2008. It was during such questioning, A2 Mary Xavier for the first time retracted the confession and took up a plea in the written statement that she had made it under duress of the police and this belated plea is not credible. In this context, the law laid down by the Supreme Court in the decision in Shankaria V. State Of Rajasthan [AIR 1978 Supreme Court 1248 AND 1399] is relevant and Their Lordships held that where the confession was not retracted at the earliest opportunity, but after lapse of several months and during examination of accused under Section 313 CrPC, the circumstances reinforces the conclusion that confession was voluntary. 21. Ex.P14 Confession Statement, made by A2 Mary Xavier, is a detailed confession giving out so many facts connecting her with A1 David Arokiaraj alias Doss and in it, she has divulged all details and the way in which the murder had taken place. The very nature of the confession given by A2 Mary Xavier revealing so many facts would show that it was voluntary in nature and was not at the instance of the police. 22. In the Confession, A2 Mary Xavier has stated that Arulnathan is her maternal uncle and after she completed Teacher training she was asked to marry him and she refused and her mother begged her that A2 Mary Xavier has to take care of the younger ones in the family and for that sake, she has to marry Arulnathan and hence she agreed and Arulnathan used to beat her and stopped helping the family of A2 Mary Xavier and a child was born and she got employment on compassionate ground in Port Trust and out of the compensation awarded for the death of her father, Arulnathan demanded a share of Rs.30,000/- and on quarrel, he obtained it from her mother and A2 Mary Xavier left the job and took employment as a Teacher in Saint Annal School. A2 Mary Xavier has further stated that her husbands mother, who is the grandmother for her, was living with them and she used to often complain about her to her husband and her husband used to scold her whenever she wears new saree and second child was born and in the meanwhile, her husband Arulnathan brought his nephew P.W.1 Immanuvel to Chennai and he was residing with them and Arulnathan brought the other nephew viz., A1 Doss also to Chennai and after some time, P.W.1 Immanuvel and A1 Doss were living separately in a rented house and Arulnathan would come home late in the night and would never take the wife and children for outdoor entertainment and would always scold the children and A1 Doss used to teach computer to her son and at that time A2 Mary Xavier told A1 Doss about the conduct of her husband and in the month of May, Arulnathan planned to take A2 Mary Xavier and children to Ooty and A1 Doss wanted A2 Mary Xavier to cancel the trip and she was not inclined and on the request of A1 Doss she purchased and presented a motor-cycle to him and on 25. 2006, A1 Doss came to their house and asked where the grandmother is and she told him that she is taking bath in the backyard of the house and A2 Mary Xavier went to take bath and A1 Doss knocked the bathroom door and told her that he has finished the grandmother and went away and she saw the grandmother lying dead near the steps and they took the body to the native place and buried it. A2 Mary Xavier has further stated that she enquired A1 Doss as to what he did the grandmother and he told her that he beat the grandmother with iron rod resulting in death and he threatened A2 Mary Xavier not to reveal the same to others, otherwise he would finish her and the children and on 6. 2006 A1 Doss phoned and demanded cash for doing business and A2 Mary Xavier pledged her jewels and obtained a loan of Rs.40,000/-and gave it to him and on 16. 2006 A1 Doss phoned and demanded cash for doing business and A2 Mary Xavier pledged her jewels and obtained a loan of Rs.40,000/-and gave it to him and on 16. 2006, A1 Doss directed A2 Mary Xavier to obtain divorce from her husband and she refused for the same and he gave idea to her to administer sleeping tablets to her husband and both of them went to medical shop at Perambur and purchased sleeping tablets and on 16. 2006 on the dirction of A1 Doss she mixed sleeping tablets in the night food and Arulnathan commented that the food was bitter and lied down without taking it and A1 Doss told her that Arulnathan should not be left alive and he has to be done away with and if he is alive A1 Doss would kill all at home and he directed her to beat her husband with iron pipe on the head and A2 Mary Xavier refused to do so. A2 Mary Xavier has further stated that on the occurrence night at 3.30 am, A1 Doss himself came to the house and took an iron pipe from the room on the back side and asked for a towel and he directed A2 Mary Xavier to catch hold of both the legs of Arulnathan and A2 Mary Xavier refused and in fear took the child and went inside and A1 Doss told her that he wrapped a towel around the iron pipe and beat her husband with it and he is dead and directed her not to touch the body and she burnt the towel and she asked him as to what to tell if somebody asked and A1 Doss directed her to tell others that theft had taken place and left the place by threatening her not to reveal his involvement and afterwards she went to the opposite house and asked them to inform the police and in the police enquiry she only complained of theft. 23. Ex.P14 Judicial Confession Statement contributed by A2 Mary Xavier thus incriminate herself very much and at any rate it is not exculpatory, if it is read as a whole and inference as to the confessor shared the common intention with A1 Doss is explicit. 23. Ex.P14 Judicial Confession Statement contributed by A2 Mary Xavier thus incriminate herself very much and at any rate it is not exculpatory, if it is read as a whole and inference as to the confessor shared the common intention with A1 Doss is explicit. A2 Mary Xavier in the above confession has stated that she was forced to marry her maternal uncle Arulnathan and he ill-treated her and he brought both his nephews and they were staying together and A1 Doss used to teach computer to her son and she had opened her mind to him and a close contact was developed and she purchased and presented a motor-cycle to him and A1 Doss attacked the grandmother with iron pipe resulting in death and she did not reveal the same to anybody and the body was buried in the native place and on the demand of money made by A1 Doss to start business, she pledged her jewels for loan of Rs.40,000/-and gave that amount to him and she continued the contact with A1 Doss and they decided to do away with Arulnathan and both of them went to purchase sleeping tablets and mixed the sleeping tablets in the night food and Arulnathan on eating it, complained of bitterness in taste and thereafter at 3.30 am in the morning, A2 Mary Xavier allowed A1 Doss to enter the house and A1 Doss took the iron pipe and wrapped it with towel and beat Arulnathan with it resulting in his death and A2 burnt the towel and gave a false complaint alleging theft. 24. While dealing with the law relating to confession, the Apex Court in the decision in State of T.N. V. Kutty Alias Lakshmi Narasimhan [2001 SCC (Cri) 1177] has laid down that it would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it and observed as follows:- "13. It is not the law that once a confession is retracted the court should presume that the confession is tainted. As a matter of practical knowledge, we can say that a non-retracted confession is a rarity in criminal cases. To retract from a confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. As a matter of practical knowledge, we can say that a non-retracted confession is a rarity in criminal cases. To retract from a confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Even for that, retraction of the confession is not a ground to throw the confession overboard." 25. With regard to the truthfulness of the version given by A2 Mary Xavier in Ex.P14 Confession, there are materials to lend assurance about the truth of it. In other words, the confession is corroborated by the following material evidence. 26. Illicit intimacy between both the accused is said to be the motive for the occurrence. PW.1 Immanuvel and A1 David Arokiaraj are the nephews to deceased Arulnathan and they were brought to Chennai from Krishnagiri by him and were allowed to reside with the family for sometime and afterwards, PW.1 Immanuvel brought his mother and took up a separate residence near the house of Arulnathan and A1 David Arokiaraj was also residing with him in his house and A2 Mary Xavier used to leave her infant with the mother of PW.1 Immanuvel while going for work as a teacher in the school and would take back the child in the evening. PW.1 Immanuvel has testified that his mother went for temple festival to the native place and he used to return home from work at 8 pm and on one day, he came earlier and saw both the accused together in the house and he saw them together for the third time in the house and on that occasion, A1 David Arokiaraj was lying in the cot and A2 Mary Xavier was standing near him keeping her hands on the wall and on seeing them, P.W.1 Immanuvel asked A1 David Arokiaraj as to why A2 Mary Xavier visited the house to see A1 David Arokiaraj in the house when she did not visit while he was unwell and A1 David Arokiaraj replied him as to why he is suspecting them since A2 Mary Xavier is their Aunt only. The testimony of PW.1 Immanuvel clearly show that he suspected intimacy between the accused. .27. P.W.16 Constable Saravanan in his testimony has stated that he was on his beat on 16. 2006 in Madhvaram and at 6.30 pm, when he came through Mango grove near Madhavaram Easwaran Koil Street, he found Accused Nos.1 and 2 standing near the motor-cycle in close proximity by A1 David Arokiaraj putting hands on shoulder of A2 Mary Xavier and he warned them and sent them away. It is contended by the appellant that the accused are relatives and one cannot suspect both of them going in motorcycle. P.W.16 Constable Saravanan had seen them in a lonely place in close proximity in objectionable posture and hence he had warned them and drove them away. Hence the above contention is devoid of merit. The prosecution has established the motive by the testimonies of PWs. 1 and 3. 28. The fact that on 6. 2006, A1 David Arokiaraj demanded cash for doing business and A2 Mary Xavier pledged her jewels and obtained a loan of Rs.40,000/- and gave it to him is proved by testimonies of PWs.3 and 4. PW.4 Hemanathan is the Director of Sempon Permanent Fund Limited., Perambur and PW.3 Selvaganapathy is a clerk in it and both of them have testified that on 6. PW.4 Hemanathan is the Director of Sempon Permanent Fund Limited., Perambur and PW.3 Selvaganapathy is a clerk in it and both of them have testified that on 6. 2006, both the accused came to their office and A2 Mary Xavier brought some gold jewels and wanted a loan of Rs.40,000/-by pledging them and they granted loan of Rs.40,000/-to A2 Mary Xavier and issued Ex.P1 Pass Book containing all the particulars relating to pledging of gold jewels. As per the entries in Ex.P1 Pass Book, loan of Rs.40,000/-was granted on 6. 2006. It is contended by the appellant that Ex.P1 Pass Book was not shown as recovered in the case. It is true that Ex.P1 Pass Book is not shown to have been recovered but pledge receipt dated 6. 2006 issued by Sempon Permanent Fund Limited was recovered by the Investigation Officer under Ex.P8 mahazar, though not marked in the case. In such circumstances, there is nothing to suspect about Ex.P1 Pass Book and PWs.3 and 4 have clearly testified about it and the prosecution has proved the above fact. .29. Both the accused are said to have given information in their statements leading to recovery of the material objects. The Investigation Officer PW.17 Inspector Joseph testified that he arrested A1 David Arokiaraj at 4 pm on 16. 2006 near Milk Dairy Bus Stand and recorded the confession statement, containing Ex.P7 admissible portion, given by him in the presence of PW.9 Balamurugan and another and A1 David Arokiaraj took them to the house in which he was living with PW.1 Immanuvel and took and produced MOs.7 to 37 and he seized them under Ex.P8 mahazar in the presence of same witnesses. The Investigation Officer has further stated that he arrested A2 Mary Xavier at 6 pm on the same day and at 6.15 pm, enquired her and recorded the confession statement containing Ex.P6 admissible portion in the presence of same witnesses and she took and produced MO.39 Iron Pipe and he recovered the same in the presence of same witnesses. 30. The learned Senior Counsel appearing for the appellant contended that mahazar witness PW.9 Balamurugan has stated that he went to the occurrence place only at 6.15 pm on 16. 30. The learned Senior Counsel appearing for the appellant contended that mahazar witness PW.9 Balamurugan has stated that he went to the occurrence place only at 6.15 pm on 16. 2006 and hence he could not have been present at 4.30 pm on that day when A1 David Arokiaraj gave the confession statement and he could not have witnessed the recovery of Mos.7 to 37 and further PW.9 has stated in the cross-examination that he signed the documents only on the next day in the Police Station and hence the recovery is doubtful. 31. The fact remains that the jewels in Mos.7 to 37 recovered by the Investigation Officer are the jewels shown in Ex.P17 written complaint. The jewels were not available with any third person, but were available only with the co-accused viz., A1 David Arokiaraj. In such circumstances, there is nothing to suspect about this recovery and the same can be accepted. 32. The other recovery dated 26. 2006 is said to have been made pursuant to the information given by both the accused in their further confession statements and MOs.2 to 4 are said to have been recovered under Ex.P16 mahazar in the presence of PW.15 Mohan and another. The learned Senior Counsel appearing for the appellant submits that the recovery is said to have been made on 26. 2006 in the presence of witnesses but the statements of the mahazar witnesses pertaining to the recovery have been sent to the Court on 26. 2006 itself and hence the recovery is doubtful. The Investigation Officer PW.17 Inspector Joseph in the cross-examination has admitted that though the recovery under Ex.P16 mahazar was made on 26. 2006 in the presence of witnesses, he has sent the statements recorded from the said witnesses on 26. 2006 itself to the Court. In view of the above, no reliance can be placed on this recovery. 33. The conduct of A2 Mary Xavier implicates her in the case. There is evidence on record to show that A2 Mary Xavier was with her husband Arulnathan in the house on the occurrence night and she is obliged to offer an explanation about the injuries on her husband. As already seen, she has given a false complaint alleging theft and it is a strong circumstance, which indicates that she is responsible for the commission of the crime. As already seen, she has given a false complaint alleging theft and it is a strong circumstance, which indicates that she is responsible for the commission of the crime. The Supreme Court in the decision in Trimukh Maroti Kirkan V. State Of Maharashtra [(2007) 1 SCC (Cri) 80] has laid down the principle that where an incriminating circumstance is put to the accused and the accused offers an explanation which is found to be false, then the same becomes an additional link in the chain of circumstances to make it complete. 34. Arulnathan suffered homicidal death is established by the testimony of post-mortem Doctor. P.W.10 Dr.Aravind has testified that he found a horizontal laceration extending from Left Parietal region of the scalp to the Left temporal region of the scalp; contusion on the left temporal parietal region of the scalp with a C shaped fissured fracture on the left temporal of parietal bone present and on dissection of the skull defuse dark red sub dural hemorrhage and subarchinoid hemorrhage present on the left temporo parietal region of the brain. He expressed opinion that the deceased would appear to have died of Head Injury. Ex.P11 is the Post-Mortem Certificate issued by him. Accepting his testimony, it becomes clear that Arulnathan died of homicidal violence. The medical evidence is in consonance with the confession made by A2 Mary Xavier. Ex.P14 Judicial Confession made by A2 Mary Xavier is voluntary and fully corroborated by the above items of evidence. 35. The Appellant/Accused No.2 Mary Xavier was charged for the offence under Section 302 read with 34 IPC but the Trial Court found her guilty for the offence under Section 302 IPC. The manner in which she had taken part in the crime along with A1 David Arokiaraj is explicit in her Ex.P14 Judicial confession and common intention is made in clear terms. Hence she is liable to be convicted for the offence under Section 302 read with 34 IPC only and the sentence of Life Imprisonment and fine imposed on her are to be retained and the conviction and sentence imposed on her for the offences under Sections 201 and 203 IPC are correct and proper. 36. Hence she is liable to be convicted for the offence under Section 302 read with 34 IPC only and the sentence of Life Imprisonment and fine imposed on her are to be retained and the conviction and sentence imposed on her for the offences under Sections 201 and 203 IPC are correct and proper. 36. In the result, the conviction imposed by the Trial Court on the appellant/A2 Mary Xavier for the offence under Section 302 IPC is set aside and instead, she is convicted for the offence under Section 302 read with 34 IPC and sentence of Life Imprisonment and fine imposed on her are retained for the altered conviction and the conviction and sentence imposed on her for the offences under Sections 201 and 203 IPC are confirmed and the Appeal is allowed to the extent indicated above.