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2009 Supreme(Mad) 2115
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE C. NAGAPPAN
& THE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMAN
Mary Xavier
Versus
State by Inspector of Police
Criminal Appeal No.649 of 2008
Decided on: 06-07-2009
For the Appellant :V.Gopinath, Senior Counsel, S. Ananthanarayanan, Advocate.
For the Respondent: Babu Muthu Meeran, Additional Public Prosecutor.
Ratios:
a. Before proceeding to record the confession of the accused, a searching enquiry must be made from the accused to ensure that there is no extraneous influence in the mind of the accused and the Magistrate should give the accused sufficient time for reflection before the accused is asked to make his statement.
b. Delay in retracting the confession given by the accused is a material circumstance to support its voluntariness.
c. When the confession of the accused gives material details about the occurrence which was corroborated by other evidences, it is to be taken as voluntarily given.
d. The failure of the accused in explaining the details of the events that took place in her house during night and when she was alone with her deceased husband and giving false report of theft is a strong circumstance against her.
Headnote:(A)Indian Penal Code, -Sec.302, 34, 201, 203-Code of Criminal Procedure, 1973(2 of 1974)-Sec.164, 313-Indian Evidence Act, 1872(1 of 1872)-Sec.3, 106 -Murder-Confession of accused-Retraction-Delay-Burden of proof-Conduct of accused-Questioning by Court-Facts especially within the knowledge of accused-Failure by accused to explain-Appellant was alleged to have murdered her husband during night in her house-She lodged FIR with police as if somebody else committed it-Later, she was arrested and while in custody gave judicial confession-Confession retracted only during Sec.313 questioning-Trial Court convicted and sentenced her-Appeal by her-She contended that the confession was not voluntary and it was retracted, Magistrate failed to assure her that if she refused to give confession, she would not be sent to the custody of the police and there was no other evidence and prayed for her acquittal-State contested it-Held, the failure of the Magistrate to assure her that she would not be sent to the custody of the police in case she failed to give confession is a curable irregularity-Her confession gives material details about the case and the role of all the accused-It is corroborated by other evidences-It was not retracted for a long time-She failed to explain the events that took place in her house during night and when she was alone with her husband-Charge proved-Conviction altered from Sec.302 IPC to Sec.302 r/w 34 IPC-Appeal partly allowed to that extent.
(B) Code of Criminal Procedure, 1973(2 of 1974)-Sec.164 - Confession of accused-Voluntariness-Precaution to be taken-Duty of Magistrate-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.
The provision in Section 164 Cr.P.C 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. Para 14
(C)Code of Criminal Procedure, 1973(2 of 1974)-Sec.164-Indian Evidence Act, 1872(1 of 1872)-Sec.3 -Confession of accused-Retraction-Delay-Delay in retracting the confession given by the accused is a material circumstance to support its voluntariness.
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 5.7.2006. 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 Cr.P.C on 24.4.2008. 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. Para 20
(D) Code of Criminal Procedure, 1973(2 of 1974)-Sec.164-Indian Evidence Act, 1872 (1 of 1872)-Sec.3-Appreciation of evidence-Confession of accused-When the confession of the accused gives material details about the occurrence which is corroborated by other evidences, it is to be taken as voluntarily given.
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. Para 21
(E)Indian Evidence Act, 1872(1 of 1872)-Sec.3, 106 -Conduct of accused-False explanation by her-Facts especially within the knowledge of accused-Failure by accused to explain-Presumption-The failure of the accused in explaining the details of the events that took place in her house during night and when she was alone with her deceased husband and giving false report of theft is a strong circumstance against her.
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. Para 33
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. 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 Imma
