IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.7.2009 CORAM: THE HONOURABLE MR.JUSTICE C.NAGAPPAN and THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN Criminal Appeal No.649 of 2008 Mary Xavier .. Appellant/Accused No.2 Versus State by Inspector of Police M2 Madavaram Milk Colony Police Station, Madavaram Chennai-60. (Cr.No.335/2006) .. Respondent/Complainant Prayer: Appeal filed under Section 374(2) of Crl.P.C. against the Judgment, dated 14.7.2008, passed in Sessions Case No.160 of 2007 on the file of the Additional District Sessions Judge, Fast Track Court No.3, Thiruvallur. ----- For Appellant :: Mr.V.Gopinath Senior Counsel for Mr.S.Ananthanarayanan For Respondent :: Mr.Babu Muthu Meeran Additional Public Prosecutor J U D G M E N T 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 14.7.2008 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 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 https://hcservices.ecourts.gov.in/hcservices/ beat on 14.6.2006 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 18.6.2006 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 19.6.2006 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 19.6.2006 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. https://hcservices.ecourts.gov.in/hcservices/ 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 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 19.6.2006 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 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 25.6.2006 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 4.7.2006 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 5.7.2006 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 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 23.8.2006 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. https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 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 https://hcservices.ecourts.gov.in/hcservices/ (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 19.6.2006. 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 29.6.2006 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 4.7.2006 at 3 pm. Accordingly, A2 Mary Xavier was produced before the Judicial Magistrate at 3 pm on 4.7.2006. 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 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? A.1. My name is Mary Xavier. Q.2. What is the name of your father/husband? A.2. My husband's name is Arulnathan. Q.3. Do you know as to before whom you are produced? A.3. I am aware as to before whom I have been produced. Q.4. Do you know that I am a Magistrate? https://hcservices.ecourts.gov.in/hcservices/ A.4. I know that you are a Magistrate. Q.5. Do you know that I am not a Police Officer? A.5. I know that you are not a Police Officer. Q.6. Whether Police are present in the Court hall? A.6. Police are not present in the Court hall. Q.7. Where from you have been brought? A.7. Now I have been brought from Vellore prison. Q.8. From which place you were arrested for the first time by the Police. A.8. Police arrested me at my residence in Azeez Nagar, Madhavaram. Q.9. After arrest where have you been kept by the Police. A.9. After arrest I have been kept in Women Police Station near Moolakkadai Depot. Q.10. Whether you were kept in lock-up in Police Station? A.10. I was not kept in lock-up in Police Station. Q.11. Whether you know that you cannot be made as an Approver? A.11. I know that I cannot become an Approver. Q.12. Are you going to give a statement? A.12. I am going to give a statement. 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. A.13. I was not put to any physical torture and no benefit or concession was offered to me https://hcservices.ecourts.gov.in/hcservices/ by Police to make a confession statement. Q.14. Whether Police told you that you would be pardoned in case of making confession statement? A.14. Police did not tell me that I will be pardoned in case of making confession statement. Q.15. Do you understand that you are not obliged to give confession statement? A.15. I understand that I am not obliged to give confession statement. Q.16. Do you know that if you give a confession statement it may be used against you in evidence in the case? 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. Q.17. Do you want to give a confession statement now? A.17. I want to give a confession statement now. 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 5.7.2006 at 3 pm. 13. Accordingly, A2 Mary Xavier was produced before the Judicial Magistrate No.II, Ponneri at 4.15 pm on 5.7.2006 and the Magistrate directed all the persons except the Magisterial clerk and the office https://hcservices.ecourts.gov.in/hcservices/ 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? A.1. I have been kept in a separate Cell. Q.2. Were you approached by police yesterday? A.2. No police approached me yesterday. Q.3. Are you aware