Mary Xavier v. State by Inspector of Police M2 Madavaram Milk Colony Police Station, Madavaram Chennai-60

beat on 14.6.2006 in Madhvaram and at 6.30 pm, when he came throughMango grove near Madhavaram Easwaran Koil Street, he found accusedNos.1 and 2 standing near the motor-cycle in close proximity by A1David Arokiaraj putting hands on shoulder of A2 Mary Xavier and hewarned 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 tohotel for taking food and A1 David Arokiaraj received a call on hisTata Indicom cell phone and he went out to speak in cell phone anddid 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 theywere residing opposite to the house of Arulnathan and on 18.6.2006 at5 am, A2 Mary Xavier knocked their gate and P.W.2 Velpandian andPW.6 Punitha came out and A2 Mary Xavier told them that somebody hadattacked her husband and stolen the jewels from the house. P.W.2Velpandian went there and saw Arulnathan lying on the mat in the hallwith bleeding injuries. P.W.2 Velpandian asked his wife P.W.2Punitha to inform the same to police and he went out in search ofa doctor.A2 Mary Xavier went to Madhavaram M2 Police Stationat 6 am on 19.6.2006 and gave Ex.P17 written complaint and P.W.17Inspector Joseph received it and registered a case in CrimeNo.335/2006 under Sections 302 and 380 IPC and prepared Ex.P18 FirstInformation Report. He reached the occurrence place at 6.15 am andprpared Ex.P3 Observation mahazar in the presence of P.W.5 Jayarajand another. Ex.P19 is the Rough Sketch prepared by him. Heseized M.O.1 Blood stained pillow under Ex.P4 mahazar in the presenceof same witnesses. He summoned the services of Finger Print Expertand 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 andrecorded their statements. He conducted inquest on the body of Arulnathan from 8 am to 10 am in the presence of panchayatars andprepared Ex.P20 Inquest Report. He sent the body for post-mortem bygiving 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: "

Brown irregular abrasion 8 x 1-1.5 cm on theright lateral side of Mid part of the back.

Laceration 1.5 x 1 cm x bone deep on the leftforehead. https://hcservices.ecourts.gov.in/hcservices/

Horizontal laceration extending from LeftParietal region of the scalp to the Left temporalregion of the scalp measuring 4 x 2 cm x bone deepwith 2 cm tag of scalp skin with subcutaneous tissueattached to the proximal end of the laceration. On reflexion of scalp dark red scalp deepcontusion on the left temporo parietal region of thescalp with a 'C' shaped fissured fracture on the lefttemporal of parietal bone present. On dissection ofthe skull defuse dark red sub dural hemorrhage andsubarchinoid hemorrhage present on the left temporoparietal region of the brain. The Base of the skull is intact. Heart: Normal in size pericardium intact. Cutsection 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 digestedcooked rice particles. No definite smell.

The accused Nos.1 and 2 were questioned under Section313 Cr.P.C and they denied complicity. A2 Mary Xavier filed writtenstatement and Ex.D1 was marked and no witness was examined on theside of defence.

The Trial Court convicted and sentenced Accused Nos.1and 2 as stated earlier. Challenging the conviction and sentenceimposed on A2 Mary Xavier, she has preferred the present appeal.

The prosecution case is that A1 David Arokiaraj andA2 Mary Xavier, in furtherance of their common intention to killArulnathan, A1 David Arokiaraj beat Arulnathan with Iron Pipe on thehead resulting in his death at the time of occurrence. Nobody haswitnessed the occurrence and the case is based on circumstantialevidence. Though several circumstances were let in, the whole casemainly rests on the judicial confession given by A2 Mary Xavierbefore the Judicial Magistrate.

Mr.V.Gopinath, learned Senior Counsel appearing for the Appellant/Accused No.2 Mary Xavier, contended that the Magistratedid not ascertain the voluntary character of the confession and the Magistrate did not put question as to why A2 Mary Xavier wanted tomake the confession and failed to inform her that she would not besent back to Police custody in case if she did not make theconfession statement and it was a mere mechanical enquiry and theconfession was not voluntary and both the Investigation Officers incross-examination have stated that A2 Mary Xavier did notexpress her willingness in writing to give judicial confession andthey have not explained as to how they came to know about thewillingness of A2 Mary Xavier to make a judicial confession and Accused No.2 was not produced from the jail and the confession wasgiven under coercion from the Police and it is not voluntary. Insupport of his submission, the learned Senior Counsel relied on threedecisions which are detailed below. https://hcservices.ecourts.gov.in/hcservices/

Per contra, Mr.Babu Muthu Meeran, learned AdditionalPublic Prosecutor, submitted that the Judicial Magistrate puteighteen questions to A2 Mary Xavier when she was produced on thefirst day to ensure whether she wanted to make a confessionvoluntarily and in the second day proceedings also, the Magistrate byway of preliminary examination put eight questions to A2 Mary Xavieras to whether she wants to make the confession voluntarily and aftersatisfying the same, the Magistrate started recording the confessionstatement and at its foot, the Magistrate had made a Memorandum thatthe 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 satisfyingherself that the confession was being made voluntarily and there wasfull and adequate compliance of the provisions of Section 164 Cr.P.Cand the judicial confession is worthy of credence and the Investigation Officer would have different sources to know that theaccused was desiring to confess and he is not obliged to reveal thesame and A2 Mary Xavier was in Central Prison, Vellore and wasproduced from there before the Judicial Magistrate and the confessionis voluntary and he also placed reliance on decisions in support ofhis submission.

The decision of the Supreme Court in SHIVAPPA V. STATEOF KARNATAKA [1995 SCC (Cri) 323] was mainly relied on by thelearned Senior Counsel appearing for the Appellant/Accused No.2 insupport of his submission. In the above decision, Their Lordshipsof the Supreme Court considered the judicial confession recordedunder Section 164 Cr.P.C by the Judicial Magistrate and held asfollows: "8. From a perusal of the evidence ofPw.17, Shri Shitappa, Additional MunsifMagistrate, we find that though he hadadministered the caution to the appellant that hewas not bound to make a statement and that if hedid make a statement that may be used against himas evidence but PW 17 did not disclose tothe appellant that he was a Magistrate and thatthe confession was being recorded by him in thatcapacity nor made any enquiry to find out whetherhe had been influenced by anyone to make theconfession. PW 17 stated during his depositionin court: "I have not stated to the accused thatI am a Magistrate" and further admitted: "I havenot asked the accused as to whether the policehave induced them (Chithavani) to give thestatement.

The above decision was referred to by the Apex Courtin the subsequent decision in AYYUB V. STATE OF U.P [2002 SCC(Cri) 673] and it was observed that in every case, the JudicialMagistrate 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 HighCourt and no element of casualness should be allowed to creep in andthe Judicial Magistrate should be fully satisfied that theconfessional statement which the accused wants is in fact and insubstance voluntary. A Division Bench of this Court in thedecision in V.C.SHYAMALA V. STATE [(2009) 1 MLJ (Cri) 866]has referred to and has followed the above decisions.

Accused No.2 Mary Xavier was arrested in this case on19.6.2006. From the material records, it is seen that the Investigation Officer gave requisition to the Chief JudicialMagistrate, Chengalpet to nominate a Judicial Magistrate forrecording the confession statement of A2 Mary Xavier under Section164 Cr.P.C. in the case. The learned Chief Judicial Magistrate byorder dated 29.6.2006 nominated the Judicial Magistrate No.II,Ponneri to record the confession statement of A2 Mary Xavier. TheJudicial Magistrate No.II, Ponneri issued Memo on 30.6.2006 to the Superintendent of Central Prison, Vellore to produce A2 Mary Xavieron 4.7.2006 at 3 pm. Accordingly, A2 Mary Xavier was producedbefore the Judicial Magistrate at 3 pm on 4.7.2006. Ex.P14 is theentire proceedings relating to recording of confession statement ofA2 Mary Xavier by Judicial Magistrate No.II, Ponneri. The JudicialMagistrate No.II, Ponneri directed all to leave the Court hall andthe doors and windows were closed and Magisterial Clerk and OfficeAssistant alone were present in the Court hall and the Magistrateput eighteen questions in Tamil language to A2 Mary Xavier by way ofpreliminary examination to ensure whether she would make voluntaryconfession statement.

Were you put to any physical torture by Police to give confession statement or whether the Police offered you any benefit orconcession 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.

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.

Do you understand that you are not obliged togive confession statement?A.15. I understand that I am not obliged to give confession statement.Q.

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.

Do you want to give a confession statement now?A.17. I want to give a confession statement now.Q.

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 tothe Superintendent of Central Prison, Vellore with instruction tokeep the prisoner/Accused No.2 Mary Xavier in a separate cell and seethat no police official or other person had access to her and shefurther directed to produce A2 Mary Xavier before her on 5.7.2006 at3 pm. 13. Accordingly, A2 Mary Xavier was produced before the JudicialMagistrate No.II, Ponneri at 4.15 pm on 5.7.2006 and the Magistratedirected 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 wereclosed and the Magistrate again put eight questions to A2Mary Xavier in Tamil by way of preliminary examination and thequestions and answers as recorded by the Magistrate are translated in English and extracted below:-"Q.1.

17. In the certificate that was appended to the confessionstatement, PW.14, the Judicial Magistrate has categorically statedthat she had explained to A2 Mary Xavier that she was not bound tomake a confession and if she did so, it might be used as evidenceagainst her and she believed that the confession was voluntarilymade. PW.14, the Judicial Magistrate has further stated that sheread over the statement to the person making it and admitted by herto be correct and that it contained a full and true account of thestatement made by her. It is true that P.W.14 JudicialMagistrate did not tell A2 Mary Xavier that she would not be sentback to police custody in case if she did not make confessionstatement and also did not specifically question A2 Mary Xavier asto why she wanted to make confession. In this context, the recentdecision 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 therewas any pressure on the person who give the confession statement and Their Lordships held that the said defect is cured by Section 463of Code of Criminal Procedure as the mandatory requirement providedunder Section 164(2) CrPC has been complied with.

For betterappreciation, the relevant portion is extracted below: " 23. ....... Therefore, it is evidentfrom the certificate appended to the confessionalstatement by PW 62 that the confessional statementwas made by the accused voluntarily. Of course, hefailed to record the question that was put by himto the accused whether there was any pressure onher to give a statement, but PW 62 having stated inhis evidence before the court that he had askedthe accused orally whether she was under anypressure, threat or fear and he was satisfied thatA-1 was not under any pressure from any corner, that in the room in which the said confessionalstatement was recorded it was only he and PW 32 whowere present and none else and that no policeofficer was available even within the precincts ofthe hospital. The said defect, in our view, iscured by Section 463 as the mandatory requirementprovided under Section 164(2), namely, explainingto the accused that he was not bound to make astatement and if a statement is made the same mightbe used against him has been complied with and thesame is established from the certificate appendedto the statement and from the evidence of PW 62.

Therefore, in the light of our discussion above, wehave no hesitation in holding that the judicialconfession (Ext. 187) having been recorded https://hcservices.ecourts.gov.in/hcservices/ according to the procedure set out in Section 164 read with Section 281 and the defectmade while recording the same being curable by Section 463, it is admissible in evidence. "18. In this case, as already seen, the mandatory requirementprescribed under Section 164(2) of Code of Criminal Procedure, namely, explaining to the accused that she was not bound to make astatement and if a statement is made the same might be used againsther has been complied with as evident from the certificate appendedto the statement in Ex.P14 Confession Proceedings and from thetestimony of PW.14 Judicial Magistrate. Of course, the learnedJudicial Magistrate did not tell A2 Mary Xavier that she would notbe sent back to police custody in case if she did not makeconfession statement and also did not specifically question A2 MaryXavier as to why she wanted to make confession.

In so far as the other contentions of the appellant that Accused No.2 Mary Xavier was not produced from judicial custody andshe did not express her willingness in writing to give judicialconfession are concerned, A2 Mary Xavier herself inEx.P14 Proceedings has replied that she was produced from VelloreCentral Jail and she was also kept in separate Cell. The SupremeCourt in the decision in STATE OF MAHARASHTRA v. DAMU AND OTHERS[2000 SCC (Cri) 1088] has observed that it is a worthless exerciseto ponder over how or from which source the Investigation Officerwould have come to know that the accused was desiring to confess andthe Investigation Officer can have different sources to know thatfact and he is not obliged to state in court the same, particularlyin view of the ban contained in Section 162 of the Code of CriminalProcedure. In view of the above, there is no merit in the abovecontentions.

Another circumstance which reinforces the conclusion aboutthe confession being voluntary is that it was not retracted at theearliest opportunity. The confession of A2 Mary Xavier was recordedon 5.7.2006. Charges were framed and read over and explained to theaccused by the Sessions Judge. That was the earliest opportunity, at which the accused could retract the confession, but A2 Mary Xavierdid not do so on this occasion, though she pleaded not guilty of thecharges and at the trial, A2 Mary Xavier was defended by threelawyers. The prosecution evidence was closed and the accused werequestioned under Section 313 CrPC on 24.4.2008. It was during suchquestioning, A2 Mary Xavier for the first time retracted theconfession and took up a plea in the written statement that she hadmade it under duress of the police and this belated plea is notcredible. In this context, the law laid down by the Supreme Courtin the decision in SHANKARIA V. STATE OF RAJASTHAN [AIR 1978SUPREME COURT 1248 AND 1399] is relevant and Their Lordships held https://hcservices.ecourts.gov.in/hcservices/ that where the confession was not retracted at the earliestopportunity, but after lapse of several months and during examinationof accused under Section 313 CrPC, the circumstances reinforces theconclusion that confession was voluntary.

Ex.P14 Confession Statement, made by A2 Mary Xavier, is adetailed confession giving out so many facts connecting her withA1 David Arokiaraj alias Doss and in it, she has divulged all detailsand the way in which the murder had taken place. The very nature ofthe confession given by A2 Mary Xavier revealing so many facts wouldshow that it was voluntary in nature and was not at the instance ofthe police.

In the Confession, A2 Mary Xavier has stated that Arulnathan is her maternal uncle and after she completed Teachertraining she was asked to marry him and she refused and her motherbegged her that A2 Mary Xavier has to take care of the younger onesin the family and for that sake, she has to marry Arulnathan andhence she agreed and Arulnathan used to beat her and stoppedhelping the family of A2 Mary Xavier and a child was born and she gotemployment on compassionate ground in Port Trust and out of thecompensation awarded for the death of her father, Arulnathandemanded a share of Rs.30,000/- and on quarrel, he obtained it fromher mother and A2 Mary Xavier left the job and took employment as aTeacher in Saint Annal School. A2 Mary Xavier has further statedthat her husband's mother, who is the grandmother for her, was livingwith them and she used to often complain about her to her husband andher husband used to scold her whenever she wears new saree and secondchild was born and in the meanwhile, her husband Arulnathan broughthis nephew P.W.1 Immanuvel to Chennai and he was residing with themand Arulnathan brought the other nephew viz., A1 Doss also to Chennaiand after some time, P.W.1 Immanuvel and A1 Doss were livingseparately in a rented house and Arulnathan would come home late inthe night and would never take the wife and children for outdoorentertainment and would always scold the children and A1 Doss used toteach computer to her son and at that time A2 Mary Xavier told A1Doss about the conduct of her husband and in the month of May, Arulnathan planned to take A2 Mary Xavier and children to Ooty and A1Doss wanted A2 Mary Xavier to cancel the trip and she was notinclined and on the request of A1 Doss she purchased and presented amotor-cycle to him and on 26.5.2006, A1 Doss came to their house andasked where the grandmother is and she told him that she is takingbath in the backyard of the house and A2 Mary Xavier went to takebath and A1 Doss knocked the bathroom door and told her that hehas finished the grandmother and went away and she saw thegrandmother lying dead near the steps and they took the body to thenative place and buried it.

Ex.P14 Judicial Confession Statement contributed by A2Mary Xavier thus incriminate herself very much and at any rate it isnot exculpatory, if it is read as a whole and inference as to theconfessor shared the common intention with A1 Doss is explicit.A2 Mary Xavier in the above confession has stated that she was forcedto marry her maternal uncle Arulnathan and he ill-treated her and hebrought both his nephews and they were staying together and A1 Dossused to teach computer to her son and she had opened her mind to himand a close contact was developed and she purchased and presented amotor-cycle to him and A1 Doss attacked the grandmother with ironpipe resulting in death and she did not reveal the same to anybodyand the body was buried in the native place and on the demand ofmoney made by A1 Doss to start business, she pledged her jewels forloan of Rs.40,000/- and gave that amount to him and she continuedthe contact with A1 Doss and they decided to do away with Arulnathanand both of them went to purchase sleeping tablets and mixed thesleeping tablets in the night food and Arulnathan on eating it, complained of bitterness in taste and thereafter at 3.30 am in themorning, A2 Mary Xavier allowed A1 Doss to enter the house and A1Doss took the iron pipe and wrapped it with towel and beat Arulnathanwith it resulting in his death and A2 burnt the towel and gave a https://hcservices.ecourts.gov.in/hcservices/ false complaint alleging theft.

While dealing with the law relating to confession, the Apex Court in the decision in STATE OF T.N. V. KUTTY ALIASLAKSHMI NARASIMHAN [2001 SCC (CRI) 1177] has laid down that it wouldbe injudicious to jettison a judicial confession on the mere premisethat its maker has retracted from it and observed as follows:-"13. It is not the law that once a confession isretracted the court should presume that the confession istainted. As a matter of practical knowledge, we can saythat a non-retracted confession is a rarity in criminalcases. To retract from a confession is the right of theconfessor and all the accused against whom confessionswere produced by the prosecution have invariably adoptedthat right. It would be injudicious to jettison ajudicial confession on the mere premise that its makerhas retracted from it. The court has a duty to evaluatethe evidence concerning the confession by looking at allaspects. The twin test of a confession is to ascertainwhether it was voluntary and true. Once those tests arefound to be positive the next endeavour is to see whetherthere is any other reason which stands in the way ofacting on it. Even for that, retraction of theconfession is not a ground to throw the confessionoverboard. "

With regard to the truthfulness of the version given byA2 Mary Xavier in Ex.P14 Confession, there are materials to lendassurance about the truth of it. In other words, the confession iscorroborated by the following material evidence.

Illicit intimacy between both the accused is said to bethe motive for the occurrence. PW.1 Immanuvel and A1 David Arokiarajare the nephews to deceased Arulnathan and they were brought to Chennai from Krishnagiri by him and were allowed to reside with thefamily for sometime and afterwards, PW.1 Immanuvel brought hismother and took up a separate residence near the house of Arulnathanand A1 David Arokiaraj was also residing with him in his house andA2 Mary Xavier used to leave her infant with the mother of PW.1Immanuvel while going for work as a teacher in the school and wouldtake back the child in the evening. PW.1 Immanuvel has testifiedthat his mother went for temple festival to the native place and heused to return home from work at 8 pm and on one day, he cameearlier and saw both the accused together in the house and he sawthem together for the third time in the house and on that occasion,A1 David Arokiaraj was lying in the cot and A2 Mary Xavier wasstanding 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 https://hcservices.ecourts.gov.in/hcservices/ visited the house to see A1 David Arokiaraj in the house when she didnot visit while he was unwell and A1 David Arokiaraj replied him asto why he is suspecting them since A2 Mary Xavier is their Aunt only. The testimony of PW.1 Immanuvel clearly show that he suspectedintimacy between the accused.

P.W.16 Constable Saravanan in his testimony has statedthat he was on his beat on 14.6.2006 in Madhvaram and at 6.30 pm, when he came through Mango grove near Madhavaram Easwaran KoilStreet, he found Accused Nos.1 and 2 standing near the motor-cyclein close proximity by A1 David Arokiaraj putting hands on shoulderof A2 Mary Xavier and he warned them and sent them away. It iscontended by the appellant that the accused are relatives and onecannot suspect both of them going in motor-cycle. P.W.16Constable Saravanan had seen them in a lonely place in closeproximity in objectionable posture and hence he had warned them anddrove them away. Hence the above contention is devoid of merit. The prosecution has established the motive by the testimonies ofPWs. 1 and 3.

The fact that on 5.6.2006, A1 David Arokiaraj demandedcash for doing business and A2 Mary Xavier pledged her jewels andobtained a loan of Rs.40,000/- and gave it to him is proved bytestimonies of PWs.3 and 4. PW.4 Hemanathan is the Director of Sempon Permanent Fund Limited., Perambur and PW.3 Selvaganapathy isa clerk in it and both of them have testified that on 7.6.2006, boththe accused came to their office and A2 Mary Xavier brought somegold jewels and wanted a loan of Rs.40,000/- by pledging them andthey granted loan of Rs.40,000/- to A2 Mary Xavier and issuedEx.P1 Pass Book containing all the particulars relating to pledgingof gold jewels. As per the entries in Ex.P1 Pass Book, loan ofRs.40,000/- was granted on 7.6.2006. It is contended by theappellant that Ex.P1 Pass Book was not shown as recovered in thecase. It is true that Ex.P1 Pass Book is not shown to have beenrecovered but pledge receipt dated 7.6.2006 issued by SemponPermanent Fund Limited was recovered by the Investigation Officerunder Ex.P8 mahazar, though not marked in the case. In suchcircumstances, there is nothing to suspect about Ex.P1 Pass Book andPWs.3 and 4 have clearly testified about it and the prosecution hasproved the above fact.

Both the accused are said to have given information intheir statements leading to recovery of the material objects. TheInvestigation Officer PW.17 Inspector Joseph testified that hearrested A1 David Arokiaraj at 4 pm on 19.6.2006 near Milk Dairy BusStand and recorded the confession statement, containing Ex.P7admissible portion, given by him in the presence of PW.9 Balamuruganand another and A1 David Arokiaraj took them to the house in which hewas living with PW.1 Immanuvel and took and produced MOs.7 to 37 and https://hcservices.ecourts.gov.in/hcservices/ he seized them under Ex.P8 mahazar in the presence of same witnesses. The Investigation Officer has further stated that he arrested A2 MaryXavier at 6 pm on the same day and at 6.15 pm, enquired her andrecorded the confession statement containing Ex.P6 admissible portionin the presence of same witnesses and she took and produced MO.39Iron Pipe and he recovered the same in the presence of same witnesses.

The learned Senior Counsel appearing for the appellantcontended that mahazar witness PW.9 Balamurugan has stated that hewent to the occurrence place only at 6.15 pm on 19.6.2006 and hencehe could not have been present at 4.30 pm on that day when A1 DavidArokiaraj gave the confession statement and he could not havewitnessed the recovery of Mos.7 to 37 and further PW.9 has stated inthe cross-examination that he signed the documents only on the nextday in the Police Station and hence the recovery is doubtful.

The fact remains that the jewels in Mos.7 to 37 recoveredby the Investigation Officer are the jewels shown in Ex.P17 writtencomplaint. The jewels were not available with any third person, butwere available only with the co-accused viz., A1 David Arokiaraj. In such circumstances, there is nothing to suspect about thisrecovery and the same can be accepted.

The other recovery dated 24.6.2006 is said to have beenmade pursuant to the information given by both the accused in theirfurther confession statements and MOs.2 to 4 are said to have beenrecovered under Ex.P16 mahazar in the presence of PW.15 Mohan andanother. The learned Senior Counsel appearing for the appellantsubmits that the recovery is said to have been made on 24.6.2006 inthe presence of witnesses but the statements of the mahazarwitnesses pertaining to the recovery have been sent to the Court on 22.6.2006 itself and hence the recovery is doubtful. TheInvestigation Officer PW.17 Inspector Joseph in thecross-examination has admitted that though the recovery under Ex.P16mahazar was made on 24.6.2006 in the presence of witnesses, he hassent the statements recorded from the said witnesses on 22.6.2006itself to the Court. In view of the above, no reliance can be placedon this recovery.

The conduct of A2 Mary Xavier implicates her in thecase. There is evidence on record to show that A2 Mary Xavier waswith her husband Arulnathan in the house on the occurrence night andshe is obliged to offer an explanation about the injuries on herhusband. As already seen, she has given a false complaint allegingtheft and it is a strong circumstance, which indicates that she isresponsible for the commission of the crime. The Supreme Court inthe decision in TRIMUKH MAROTI KIRKAN V. STATE OF MAHARASHTRA[(2007) 1 SCC (Cri) 80] has laid down the principle that where anincriminating circumstance is put to the accused and the accused https://hcservices.ecourts.gov.in/hcservices/ offers an explanation which is found to be false, then the samebecomes an additional link in the chain of circumstances to make itcomplete.

Arulnathan suffered homicidal death is established bythe testimony of post-mortem Doctor. P.W.10 Dr.Aravind has testifiedthat he found a horizontal laceration extending from Left Parietalregion 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 bonepresent and on dissection of the skull defuse dark red sub duralhemorrhage and subarchinoid hemorrhage present on the left temporoparietal region of the brain. He expressed opinion that the deceasedwould appear to have died of Head Injury. Ex.P11 is the Post-MortemCertificate issued by him. Accepting his testimony, it becomesclear that Arulnathan died of homicidal violence. The medicalevidence is in consonance with the confession made by A2 Mary Xavier. Ex.P14 Judicial Confession made by A2 Mary Xavier is voluntary andfully corroborated by the above items of evidence.

The Appellant/Accused No.2 Mary Xavier was charged forthe offence under Section 302 read with 34 IPC but the Trial Courtfound her guilty for the offence under Section 302 IPC. The mannerin which she had taken part in the crime along with A1 DavidArokiaraj is explicit in her Ex.P14 Judicial confession and commonintention is made in clear terms. Hence she is liable to beconvicted for the offence under Section 302 read with 34 IPC only andthe sentence of Life Imprisonment and fine imposed on her are tobe retained and the conviction and sentence imposed on her for theoffences under Sections 201 and 203 IPC are correct and proper.

In the result, the conviction imposed by the Trial Courton the appellant/A2 Mary Xavier for the offence under Section 302 IPCis set aside and instead, she is convicted for the offence under Section 302 read with 34 IPC and sentence of Life Imprisonment andfine imposed on her are retained for the altered conviction and theconviction and sentence imposed on her for the offences under Sections 201 and 203 IPC are confirmed and the Appeal is allowedto the extent indicated above. Sd/- Asst. Registrar/true copy/ Sub Asst. Registrarvks https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District & Sessions Judge (Fast Track Court No.3)Thiruvallur.2. -Do- through the Principal District & Sessions Judge, Thiruvallur.3. The District Munsif cum Judicial Magistrate, Thiruvottriyur.4. -do- Thro The Chief Judicial Magistrate, Thiruvallur.5. The Inspector of Police, M2-Madavaram Milk Colony Police Station, Madavaram, Chennai-60.6. The Superintendent of Prisons, Women's Wing, Central Prison, Puzhal, Chennai-600 066.7. The Public Prosecutor, High Court, Madras-104.8. The Section Officer, Criminal Side Section, High Court, Madras-104.9. The District Collector, Thiruvallur10. The Director General of Police, Mylapore, Chennai-4. JUDGMENT in CRL. APPEAL.No.649 of 2008SSN {CO}TP/13.7.2009.