Raja v. State — 1996 DIGILAW 132 (MAD)

Judgment :- Arunachalam, J. This is a case of double murder, in which the sole appellant, Raja, faced his trial in Sessions Case No. 12 of 1988, before the learned Sessions Judge, South Arcot at Cuddalore. Two charges were framed against the appellant, one in respect of each of the deceased, under Sec.302, I.P.C. The allegations in the charges are that on the night of 30/38. 1987, at or about 2.00 a.m. in the front yard of his house at Keezhakuppam Village, appellant did commit the murder of his wife Chinna Pillai, by cutting her with an axe on her head and right fore-arm and in the course of the same transaction, he did commit the murder of his four year old daughter, Gunasundari, by cutting her with an axe on her head, abdomen and other parts of the body, leading to instantaneous deaths of both of them. Hereinafter, we shall refer to Chinna Pillai as D-1 and Gunasundari as D-2. On termination of trial, learned trial Judge found the appellant guilty of murder (two counts) and sentenced him to undergo imprisonment for life under each count. Substantive sentences of imprisonment were directed to run concurrently. 2. Let us now state the case of the prosecution, as could be discerned from the evidence brought on record. D-1 was married to the appellant in or about 1984 and they had two male children and one female, born on the said marriage. Appellant, after getting himself intoxicated, was in the habit of constantly fighting with his wife, which, in turn, led to the latter seeking refuge in the house of her elder brother, P.W.6 Ramanujam. A few days later on every occasion, appellant would proceed to the house of the parents of D-1 and get her back, naturally, after pacification. Approximately about six months prior to occurrence, as a result of one of the boots of quarrel between the spouses, D-1 went away to her parental house and at or about that time, appellant, who was angered and aggrieved, almost planned, to put an end to the life of his wife. On the evening prior to occurrence night, at 6.00 p.m., D.1 arrived at her residence, after attending a marriage. Two hours thereafter she went along with her children to the residence of P.W.5, Devarajan a neighbour. P.W.2, Ratnavel and P.W.3, Manickavel, are her sons, While D-2 is her daughter. On the evening prior to occurrence night, at 6.00 p.m., D.1 arrived at her residence, after attending a marriage. Two hours thereafter she went along with her children to the residence of P.W.5, Devarajan a neighbour. P.W.2, Ratnavel and P.W.3, Manickavel, are her sons, While D-2 is her daughter. D-1 was engaged in conversation with P.W.5. At or about that time, appellant came over to the house of P.W.5 and called D-1 to come home and feed him. D-1 refused and added that the appellant could go home and himself serve and eat his food. At or about 10.00 p.m. on the same night D-1, D-2, P.W.2 and P.W.3 returned to their residence, since they were feeling sleepy. 3. P.W.4, Rajakannu, is another neighbour of the appellant and the deceased. P.W.6 Ramanujam elder brother of D-1 has spoken about the motive and similarly, P.W.5 has also deposed on that aspect of the prosecution case. After D-1 and her children left his house, P.W.5 took his bed outside his house. Similarly, D-1 and D-2 spread a mat in the front yard of their house and went to bed. Nearby, on a sack, M.O.3, P.Ws.2 and 3 laid themselves down in the night. Around 2.00 a.m. P.W.3 the juvenile son of D-1 suddenly felt, as though he was pinched. When he woke up, he noticed the appellant removing the axe from the head portion of his mother, D-1. He and P.W.2 shouted, that their father had murdered D-1 and D-2 and rushed towards the residence of P.W.5. M.O.4, a tin lantern, kept on the head side of the deceased, was then burning. On hearing the hue and cry of P.Ws.2 and 3, P.Ws.4 and 5 rushed towards the scene. Both of them saw the appellant throwing the axe at the spot of crime, before running inside his house. They also found out injuries on the head, hand, back etc., of both the deceased. Intestines of D-2 had come out. P.Ws.4 and 5 arranged for a lantern and when they came back, they found, that the appellant had escaped. There was profuse blood soaking on the clothes of the victims, the mat and the sack. 4. At or about 5.00 a.m. on 38. 1987 appellant appeared before P.W. 1 Dayalamurthi, Village Administrative Officer, Vallam. P.W.1 was awake then and he was in the company of P.W.8, Ramalingam, a village menial. There was profuse blood soaking on the clothes of the victims, the mat and the sack. 4. At or about 5.00 a.m. on 38. 1987 appellant appeared before P.W. 1 Dayalamurthi, Village Administrative Officer, Vallam. P.W.1 was awake then and he was in the company of P.W.8, Ramalingam, a village menial. Appellant told P.W.1, that on the earlier night at 9.00 p.m., in spite of his request, his wife did not come home and serve him food and on that score, a quarrel and fight arose between them, which lasted till 2.00 a.m. and getting enraged, at or about that time, on the attitude of his wife, he axed her to death with M.O.1, which he had thrown away near the scene, after murdering D-2 also in the same pattern, The narration of the appellant was reduced into writing by P.W. 1 and on Ex.P. 1 so written, after getting affirmation of the truth of the contents written P.W. 1 obtained the signature of the appellant. P.W. 1 then left towards the scene, after directing P.W.8 to guard the appellant. The distance between the scene of occurrence and the residence of P.W.1 is two kilometres. He reached the scene at 6.00 a.m. He saw both the corpses with bleeding injuries, as well a bloods stained axe bring towards the head portion of the deceased. He also found M.Os.2 to 5 at the scene. P.W.9 Sakthivel, another village menial, came over to the scene P.W. 1 directed him to guard the corpses and then returned home to prepare his report, Ex.P-2. Ex.P-3 is a copy of Ex.P-2. He despatched Exs.P-1 and P-2 along with the appellant, to Muthandikuppam Police Station, through P.W.8, while forwarding a copy of Ex.P-1 and Ex.P-3 through the same messenger, to be handed over to the concerned Magistrate. Thereafter, P.W. 1 went back to the scene at 8.00 a.m. P.W.16, Dastagir, Sub Inspector of Police, Muthandikuppam, received at 8.15 a.m. on 38. 1987, Exs.P-1 and P-2, on the basis of which he registered Crime No. 109 of 1987 under Sec.302, I.P.C. and prepared the printed express first information report, Ex.P-17. Since the appellant was also produced before him, he had him searched and recovered from him M.O.6, lungi, and M.O.29, a yellow coloured jacket used as langod by the appellant under Form No.95, marked as Ex.P-18. Since the appellant was also produced before him, he had him searched and recovered from him M.O.6, lungi, and M.O.29, a yellow coloured jacket used as langod by the appellant under Form No.95, marked as Ex.P-18. He despatched copies of the first information report to all the authorities as usual. 5. P.W.8, after handing over Exs.P-1 and P-2 at the police station, proceeded to Neyveli, to hand over copy of Ex.P-1 and Ex.P-3 to the Magistrate. He became aware, that the Judicial Magistrate, Neyveli, was not available and he had to necessarily hand over the documents to the Judicial Magistrate, Cuddalore. He then went over to Cuddalore and handed over Ex.P-1 and Ex.P-3 to the court Clerk at Cuddalore, at 2-00 p.m. P.W. 17, Subramaniam, Inspector of Police, Vadalur, on receipt of a copy of the express first information report at 9.30 a.m. on 38. 1987, took over investigation forthwith and reached the scene of occurrence at 11.00 a.m. In the presence of P.W. 10, Arumugham, he prepared Ex.P-4, observation mahazar, and Ex.P-19, scene sketch. With the help of P.W. 12, Rajendrababu, a photographer, he had pictures of the scene and corpses taken. M.Os.10 to 14 are the negatives, while M.Os.15 to 17 are the correlatable positives. At 11.30 a.m. P.W. 17 seized M.O.1, axe, from near the head portion of D-1, under mahazar, Ex.P-5. Between 12.00 noon and 3.30p.m., he held inquest over the corpses of D-1 and D-2 and prepared inquest reports, Exs.P-20 and P 21. With a requisition, Ex.P-7, P.W. 17 despatched the dead bodies, through police constable, P.W. 14 Devaraj, to Government Hospital, Panruti, for the conduct of postmortem. At 4.00 p.m. P.W. 17 seized from the scene M.O.2, mat M.O.3, sack M.O.4, tin lantern, M.O.5, match box M.O.7, bloodstained earth M.O.8, sample earth, and M.O.9 blood stained pillow, under mahazar Ex.P-6 attested by P.W. 10. During the course of investigation P.W.7 Duraisami, was examined to show that he had made ready M.O.1, axe, for the use of the appellant, approximately two years prior to his giving evidence in court. 6. The dead bodies, which were sent to hospital, were taken up for autopsy by P.W. 11 Dr.Aysha. She commenced post-mortem on the dead body of D-1 at 4.35 p.m. on 38. 1987 and found the following injuries. External injuries: 1. Left sided horicontally placed eliptical shaped incised wound of 12 cm. in length 2.5 cm. 6. The dead bodies, which were sent to hospital, were taken up for autopsy by P.W. 11 Dr.Aysha. She commenced post-mortem on the dead body of D-1 at 4.35 p.m. on 38. 1987 and found the following injuries. External injuries: 1. Left sided horicontally placed eliptical shaped incised wound of 12 cm. in length 2.5 cm. in breadth x brain depth, exposing brain matters with fractured bones (frontal and temporal bone, on the left side) starting from 1 cm. in front of tragus of the left ear goes upwards and medially 1 cm. above the left eye brow, ends at 2 cm. above the medial end of the left eye brow. 2. An incised wound of 7 cm x 1 cm x brain depth exposing brain matters with visible of left temporal and occipital bone. 3. An incised wound of 5 cm x 1 cm x brain depth, 5 cm above the injury No.2 exposing parietal and occipital bone, left side. 4. An incised wound of 4 cm x 1 cm x brain depth exposing fractured ends of right temporal bone 2 cms. In front of the upper border of right ear. 5. Lacerated wound of 3 x 1/2 cm. bone depth, 4 cm above the injury No.4. 6. An incised wound of 2 x 1/2 cm x bone depth on the middle of front of right fore-arm (front). On dissection of injury No.6, fracture of right radius at the middle. All the injuries are ante-mortem in nature. There was fracture of head bones, frontal left temporal, left parietal, occipital and right temporal bones. In the opinion of the doctor, D-l would appear to have died of shock and haemorrhage as a result of head injuries, about 16 to 17 hours prior to conduct of post-mortem. Ex.P-8 is the post-mortem certificate. External injuries 1 to 6 corresponded to internal injuries shown under the categories head and rememberances. External injuries 1 to 4 with their corresponding internal injuries, were independently sufficient in the ordinary course of nature to cause death. All the injuries could have been caused with a weapon like M.O.1. 7. On the same day, at 5.45 p.m., the same doctor commenced autopsy on the dead body of D-2. She found the following injuries on D-2. External injuries: 1. Obliquely placed eliptical shaped incised wound of 6 cm x 2 cm. All the injuries could have been caused with a weapon like M.O.1. 7. On the same day, at 5.45 p.m., the same doctor commenced autopsy on the dead body of D-2. She found the following injuries on D-2. External injuries: 1. Obliquely placed eliptical shaped incised wound of 6 cm x 2 cm. on the back, lower at the midline, at the level of T-10 upper and 1 cm. lateral to the midline. Probe passing through the abdominal cavity. 2. Eliptical shaped incised wound of 5 cm x 11/ 2 cm. on the abdomen, lower border of 10th rib on the left side at the mid clavicular line. Intestines and omentum protruding through the injury. 3. An incised wound of 5 cm x 1 cm. on the left side of face, starting from outer can thus of left eye, to the lower end of the left ear lobe x bone depth exposing fractured ends maxillary bones. 4. Left sided horizontally placed eliptical shaped incised wound of 12 cm x 4 cm starting from the upper border of the left ear goes upwards and medically and end at the midline of frontal area, exposing fractured ends of frontal and temporal bone. 5. An incised wound of 7 x 3 cm x bone depth on the left side of the occipital region. All the above injuries are ante-mortem in nature. Internally, she noticed omentum protruding through the opening of the greater curvature. She also noticed that liver was pierced at the right lobe upper surface 1 Rs x 3/4 cm (entrance) and lower surface 1 x 1/2 cm. (exit). Cut section of spleen and kidneys were found to be pale. On the head, there was fracture of frontal bone, left temporal bone and occipital bone and left parietal bone. On the spinal column, there was fracture of 9th and 10th thoracic vertebrae. Spinal-cord was also found severed at the level of 9th and 10th thoracic vertebrae. In the opinion of the doctor, D-2 would have died of shock and hemorrhage as a result of injuries sustained, 17 to 18 hours prior to conduct of post-mortem. Ex.P-9 is the post-mortem certificate. External injuries 1 and 2 in Ex.P-9 correspond to internal injuries shown under the heading stomach and liver. Likewise, external injuries 3 to 5 correspond to internal injuries shown under the heading membrances, brain, spinal column and spinal cord. Ex.P-9 is the post-mortem certificate. External injuries 1 and 2 in Ex.P-9 correspond to internal injuries shown under the heading stomach and liver. Likewise, external injuries 3 to 5 correspond to internal injuries shown under the heading membrances, brain, spinal column and spinal cord. External injuries 1 to 5 with their corresponding internal injuries independently were sufficient in the ordinary course of nature to cause death. These injuries could have been caused with a weapon like M.O.1. 8. P.W.17 forwarded Ex.P-10, a requisition to Judicial Magistrate, Cuddalore, to have to the judicial confession of the appellant recorded. He further made a request to have the versions of P.Ws.2 to 5 recorded by the Magistrate and that was made through a requisition, Ex.P-12. 9. P.W.13, Radhakrishnan, then Judicial Second Class Magistrate, Panruti, on the orders of the Chief Judicial Magistrate, Cuddalore, which he received on 9. 1987, directed the Superintendent of the Sub Jail, to produce the appellant before him on the next day at 2.00 p.m. At 3.00 p.m. on 9. 1987 the appellant was produced before him. After following the usual precautions under law, learned Magistrate questioned the appellant and though he was satisfied that the appellant was inclined to confess, he afforded him 24 hours time for reflection and directed production of the appellant over again before him at 3.15 p.m. on 9. 1987. Appellant was not produced on the next day. Again, the learned Magistrate questioned the appellant and on arrival of satisfaction, that the appellant was keen and inclined voluntarily to offer a statement in relation to the instant crime, he had it recorded. Ex.P-11 is the judicial confession, which contains the endorsement made by P.W.13 that the confession of the appellant was voluntary nature of the said confession. 10. On 9. 1987, statements under Sec. 164, Crl.P.C. were recorded from the witnesses by the same Magistrate. P.W.17 had the material objects, seized during investigation, forwarded for chemical analysis., P.W.15, Namaskaram, Court Clerk, has proved Exs.P-15 and P-16, which are respectively the reports of the Chemical Analyst and the Serologist. After completing investigation, P.W.17 laid the final report on 2. 1987. 11. When the appellant was examined under Sec.313, Crl.P.C. to explain the incriminating circumstances appearing against him in evidence, he chose to deny his complicity in the crime. After completing investigation, P.W.17 laid the final report on 2. 1987. 11. When the appellant was examined under Sec.313, Crl.P.C. to explain the incriminating circumstances appearing against him in evidence, he chose to deny his complicity in the crime. He went on to add that, on the coercion of Sub-Inspector of Police, he had confessed before the Magistrate and there was no truth in it. He further stated, that he was not wearing a langod, but was attired in a dhoti. He admitted that on the occurrence night, he was sleeping inside the house, while his wife and children were lying in the front yard of the same house. He would have it that on hearing the hue and cry of his children, he got up from his slumber, came out and to his dismay, found D-1 and D-2 dead with bleeding injuries. According to him, he had not committed any offence. No evidence in defence was adduced. 12. On assessment of the oral and documentary evidence, learned trial Judge accepted the prosecution case, rejected the defence and dealt with the appellant, as stated earlier. 13. Mr.R. Balasubramaniam, appellant’s learned counsel, submitted that the prosecution case cannot be accepted in its entirety, since, in Ex.P.11, the appellant, though has admitted having caused the death of D-1, had alleged therein that a single cut accidentally fell on D-2. Even in respect of D-1, he would have it that he gave only one cut on the head of the deceased, in anger. On seeing blood gushing out from the head of D-1, leaving the axe in the spot itself, he returned to his house. In the extrajudicial confession, Ex.P-1, it was pointed out, that the appellant has stated about the vulgar abuses hurled at him by D.1, which provoked him gravely and suddenly, necessitating user of an axe, which was lying nearby, to do away with her. In Ex.P-1, appellant has also stated, that he caused the death of D-2 with the same axe, by cutting her on her back and twice on her head, since she get up from bed and scrammed. In Ex.P-1, appellant has also stated, that he caused the death of D-2 with the same axe, by cutting her on her back and twice on her head, since she get up from bed and scrammed. Appellant’s learned counsel would therefore contend, that if Ex.P-11 were to be taken note of, the death of D-2 was accidental and if Ex.P-1 were to be accepted, in respect of the first murder, appellant would be entitled to the benefit of Exception 1 to Sec.300, I.P.C. He then urged that in view of these divergent statements, in two different confessions, both of them may have to be excluded from consideration, for, according to the accused before the trial court, both of them were not voluntary. As far as the evidence of P.W.3 is concerned, he submitted, that on his not having mentioned certain details during investigation, which he had chosen to depose in the witness box, his version will have to be discarded. He pointed out that neither P.W.1, nor P.W.8 had spoken about the appellant having told them that he had thrown away the axe at the venue of crime, though in fact, they have spoken about, having seen the weapon of offence, at the crime venue. He did not have much of comments to offer on the versions of P.Ws.4 and 5. He was at pains to point out, that Ex.P.1 cannot be taken to be a true document, since it had reached the learned Magistrate belatedly. In effect, he invited us to reject both the confessions, extra-judicial and judicial, as tainted. On Ex.P-11, he contended that the endorsements made in Ex.P-11 did not indicate that the learned Magistrate, P.W.13, had reason to believe that the appellant was voluntarily coming out with his confession. Finally, he contended that, if at all, the appellant will be liable under Sec.304, I.P.C. and not under Sec.302, I.P.C. 14. Mr.R. Raghupathi, learned Additional Public Prosecutor, while countering the submissions made by Mr.R. Balasubramaniam, submitted, that the truth and effectiveness of Exs.P-1 and P-11 cannot be easily sought to be, shattered. He pointed out that the appellant had gone over to the house of P.W.1 event at 5.00 a.m. within about three hours of crime commission, the distance in between being 2 kilometres. He pointed out that the appellant had gone over to the house of P.W.1 event at 5.00 a.m. within about three hours of crime commission, the distance in between being 2 kilometres. He submitted that the contents of Ex.P-1 will clearly show that the appellant wanted to unburden himself and there was nothing surprising in his having chosen the village Administrative Officer to open up his mind. He emphasised the need to attach great value to Ex.P-11 Judicial confession recorded by P.W.13. By reference to the document (Ex.P-11), he submitted that all formalities which the Magistrate is expected to follow in law, stood strictly adhered to and hence there was no merit in the submission of appellant’s learned counsel, that the aspect of reasonable belief did not form part of the document or the oral evidence of P.W.13. On the basis of certain decided cases, he contended that even if a part of the confession of the appellant was exculpatory and the other inculpatory, the inculpatory part of it could be accepted, if other evidence was available to confirm that part of the confession and equally to hold that the exculpatory part of it was neither reasonable nor acceptable on the foundation of the evidence available. Apart from the confessions, extra-judicial and judicial, he pointed out the intrinsic merit of the evidence of P.Ws.3 to 5, who had seen the appellant with the axe and pinpointed the strong link between the crime and the accused since the occurrence had taken place in the frontyard of his house, wherein he was admittedly present and the claim of circumstances brought on record through P.Ws.3 to 5, clinchingly connecting the appellant with the crimes in question. He drew support from the medical evidence also. In short, he pleaded for upholding of the verdict of the learned trial Judge. 15. All the relevant facts, which led to this prosecution, have been detailed by us. On the basis of those facts, we have to now assess the inherent merits of the contentions urged by counsel on either side. We can classify the prosecution case, on the basis of evidence adduced, under three different categories. The first of such categories will be the evidence of P.Ws.3 to 5 in respect of the occurrence proper and that of P.W.6, coupled in part with P.W.5, in respect of the motive. We can classify the prosecution case, on the basis of evidence adduced, under three different categories. The first of such categories will be the evidence of P.Ws.3 to 5 in respect of the occurrence proper and that of P.W.6, coupled in part with P.W.5, in respect of the motive. The second head would be the genesis of Ex.P. 1, the extra-judicial confession made by the appellant before P.W.1, when he was in the company of P.W.8, Naturally the value and effectivity of Ex.P-1 vis-a-vis its incriminating the appellant, will need discussion. In the final category will fall Ex.P-11, the judicial confession recorded by P.W.13 from the appellant, after following the procedure prescribed by law. Apart from these classifications, we have the other evidence like the medical versions, recovery, evidence, etc. 16. Even at the outset, we are prepared to state, that assuming that categories 2 and 3 are excluded from consideration, even then on the basis of evidence on the first classification alone, coupled with other circumstances, which fall outside the classifications, it will be still possible to find the appellant safely guilty of murder, of his wife and minor daughter. 17. Let us now audit the evidence of P.Ws. 3 to 5. We are not mentioned in this category the evidence of P.W.2, Ratnavel, another juvenile son of D.1 and the appellant, for, when he was put into the witness box, he was almost in a trance, blinking and was not able to state anything more than affirming the death of his mother and sister. 18. That there was motive for the appellant to kill D-1 is fairly apparent. P.W.6, Ramanujam, elder brother of D. 1 has spoken about the incessant arrival of his sister to his house, due to cruelty inflicted on her by the appellant after getting himself intoxicated and thereafter his trying to pacify his wife and take her back to the matrimonial home for sometime before the history could repeat itself. P.W.5, an independent witness of the locality has also deposed about the habit of the appellant not going for work, but indulging in drinking and quarrelling with his wife almost as a daily ritual. This is the general background. But there was a proximate cause as well, which had occurred a few hours prior to the murder of both the deceased. This is the general background. But there was a proximate cause as well, which had occurred a few hours prior to the murder of both the deceased. D-1, who had returned to the village with her children, after attending a marriage, proceeded to the house of P.W.5, with her children, and the appellant who appears to have returned home earlier, was anxious that his wife should feed him and naturally he proceeded to the house of P.W.5 and called upon D-1 to come home and serve food for him. She refused to accede to the request of the appellant and also exclaimed that he could himself take the food from the house and eat it. So there was a cause for quarrel a few hours earlier between the spouses and if the appellant was addicted to drinking as the evidence in generality shows, it is quite probable that even on that fateful night, the appellant could not excuse himself from that acquired habit. The versions of P.Ws.3 and 5, will show that soon after D-1 and her children left the house of P.W.5, they spread their beds outside their house and laid themselves down, since they were already sleepy. That the appellant was present in the house at that time, is not only confirmed by the evidence of P.W.3, but stands admitted by the appellant himself. P.W.5, a neighbour, had also taken his bed, in the threshold of his house, in the same manner as P.W.4, another neighbour, had dene. It is not unusual in villagers, for inmates of the houses to take their beds outside their respective residences and more so in the month of August, when the weather would be sufficiently not enough needing exit from the interior of the houses. Therefore, it can safely be taken that in the residence of the appellant, except the appellant himself, D-1, D-2, P.W.2 and P.W.3, none else was available on that night. If any incident, takes place in the presence of the appellant and the others mentioned above, those persons, would be the most competent to speak about the manner in which the occurrence had taken place. D-1 and D-2 are not available to speak about it and P.W.2, obviously out of fear psychosis and tender age, was unable to depose before the trial court. D-1 and D-2 are not available to speak about it and P.W.2, obviously out of fear psychosis and tender age, was unable to depose before the trial court. There are only two other persons who could speak about all that had happened and they are P.W.3 and the appellant. P.W.3, though a young boy aged about 11 years, the learned trial Judge, after initially questioning him, was satisfied that he was competent and capable of narrating about all that he had known about the occurrence. A perusal of his evidence, in chief as well as in cross, will clearly confirm, the opinion formed by the learned trial Judge, that this juvenile witness had the capacity to speak truly as to the manner in which the occurrence had taken place, when he was in the company of both the deceased, his father and another. At dead of night, as we call it, in this case around 2.00 a.m., P.W.3 appears to have felt that some one was pinching him and that made him abruptly get out of slumber. It was then he was able to notice his father, the appellant, removing from the head portion of D.W.I the axe, M.O.1. This young boy was so much in fright, and obviously shattered, that the only thing he could do was to run out shouting, seeking for help from the neighbours. The shouts of P.W.3 and his younger brother, attracted P.Ws.4 and 5, who converged quickly in the scene place and were able to notice the appellant holding the axe and later throwing it away and escaping. P.W.3 has frankly admitted in cross-examination, that he was not aware as to the prior happenings before 2.00 a.m. for he was sleeping and we can take judicial notice that children who sleep off, do not generally get disturbed by conversations all around. Cross-examination of this witness has enhanced his credibility rather than causing a dent. It was pointed out, that he had not mentioned about availability of M.O.4, the tin lantern, while his statement was recorded under Sec. 164, Crl.P.C. That can hardly make any difference. That M.O.4 was available at the scene is amply proved by the contents of the observation mahazar, seizure of the same and substantive evidence of P.Ws.4 and 5. It was pointed out, that he had not mentioned about availability of M.O.4, the tin lantern, while his statement was recorded under Sec. 164, Crl.P.C. That can hardly make any difference. That M.O.4 was available at the scene is amply proved by the contents of the observation mahazar, seizure of the same and substantive evidence of P.Ws.4 and 5. We are satisfied, that P.W.3 has spoken the whole truth and his evidence shows, that the appellant had in fact attacked with the axe and when he was in action, or at least partly in action, P.W.3 had witnessed, it. If, for the present, we exclude Exs.P-1 and P11 from consideration and take the case of the appellant when he was examined under Sec.313, Crl.P.C. it is rather odd, that he had chosen to deny the entire prosecution case in its totality. As we have stated already, appellant was the only other person available at the scene, at the relevant time and he ought to have come out with an explanation and if his explanation was probable, then the matter might have been different. Since the appellant had no other case to offer, excluding Exs.P-1 and P-11, the truthful version of P.W.3, will certainly affirm a strong foundation for the prosecution to clearly connect the appellant with the crime. The evidence of P.Ws.4 and 5 who arrived at the scene soon thereafter on hearing the cries of P.Ws.2 and 3, will put an end to any controversy, for the appellant was seen by them holding the axe and later dropping it away and disappearing from the village. Of course, questions were asked about their non-mention of the cries of P.Ws.2 and 3 during investigation, but that can hardly make any difference, for when an incident of this nature does happen naturally screams will be the automatic consequence. P.W.3 had seen the axe being removed from the heads of D-1 and soon after P.Ws.4 and 5 have seen the appellant in possession of the weapon, which he chose to throw away, before taking to his heels. Both P.Ws.4 and 5 are independent witness and they have neither affinity towards the prosecution party, nor animosity against the appellant, to falsely, implicate him. The cross-examination of these two witnesses, is very brief and does not have any bite in it. Both P.Ws.4 and 5 are independent witness and they have neither affinity towards the prosecution party, nor animosity against the appellant, to falsely, implicate him. The cross-examination of these two witnesses, is very brief and does not have any bite in it. We hold that P.Ws.4 and 5 are truthful witnesses and they with P.W.3, completely incriminate, the appellant and the appellant alone as the author of two murders. We have already, mentioned about the motive and the evidence available on it and hence further reiteration will be unnecessary. 19. The next classified piece of evidence we have to scrutinise, is the genesis of Ex.P-1, its travel, its validity and the extent of its incriminating nature. It is rather unfortunate that the appellant had chosen to deny having confessed, either before P.W.1 or P.W.13. The reason is not too far to seek. He must have become aware later that if Ex.P-1 was accepted, he will not be able to exclude himself from the murder charge in respect of his daughter. He may have a partial benefit in respect of killing of his wife and if he were to admit the truth of Ex.P-11, when he would have no escape from conviction in respect of the murder of his wife, even in the event of his plea of a cut having fallen on D-2 accidentally, could have any effect on the judicial mind. Of course, an accused is entitled to take divergent stands and it will be for the court to weigh the entire material placed before it to find out the culpability or otherwise of the appellant/accused. 20. Ex.P-1 had its genesis at 5.00p.m. at the residence of P.W.1, the Village Administrative Officer of Vallam. He has already known the appellant, for he was within his jurisdiction and it is not surprising that the appellant who had murdered not only his wife, but also his four year old daughter, was so anxious to unburden himself and that was the reason why he was before P.W.1 within a very short period after crime commission. It does not appear form his evidence, that he had animosity against the appellant. Certain details, which are found in Ex.P-1 should have been in the Exclusive knowledge of the appellant and could not have been known at all to P.W.1. The statement by the appellant to P.W.1, though detailed, is crisp enough. It does not appear form his evidence, that he had animosity against the appellant. Certain details, which are found in Ex.P-1 should have been in the Exclusive knowledge of the appellant and could not have been known at all to P.W.1. The statement by the appellant to P.W.1, though detailed, is crisp enough. He has affirmed about D-1 having one away for a function and having returned to the village at 6.00 p.m. in the evening, which stands affirmed by the evidence of P.W.3. Again, the fact of a quarrel between the spouses, though for a different cause, forms part of Ex.P-1, In Ex.P-1, appellant would have it that the quarrel between him and D-1 lasted till about 2.00 a.m. and D-1 was abusing him in vulgar language and therefore he picked up the axe lying nearby and cut her on her head twice or thrice. He is also certain in P-1 that since D-2 woke up and shouted, he chose to cut her to death by inflicting three injuries. Ex.P-1 would also affirm that the other children also got out of slumber and shouted. He has admitted in Ex.P-1 about his having thrown away the axe, at the scene and his escaping away to avoid the wrath of the villagers and for safe surrendering. We do not have any hesitation in accepting Ex.P-1, which had come out at the earliest point of time from the appellant. We have no reason to doubt the evidence of P.W.1 mat Ex.P-1 had its genesis at the time and in the manner spoken to by him. If the appellant had stuck to his having had made his extra-judicial confession before P.W.1 probably he might have been entitled to application of Exception 1 to Sec.300, I.P.C. in so far as it related to the murder of D-1, though in respect of murder of D-2, he would be squarely liable. There is enough case law, about the possibility, of accepting inculpatory and excluding exculpatory parts of confessions, be it judicial or extra-judicial. The same principle may have to be applied, even if an accused seeks to bring out circumstances in his confession, which have a bearing on the nature of offence. There is enough case law, about the possibility, of accepting inculpatory and excluding exculpatory parts of confessions, be it judicial or extra-judicial. The same principle may have to be applied, even if an accused seeks to bring out circumstances in his confession, which have a bearing on the nature of offence. Since the appellant himself has disowned Ex.P-1 and we find Ex.P-1 was in the possession of the Magistrate only at 6.00 p.m. on that day, though it was recorded at 5:00 a.m. and was in the custody of the police agency, even at 8.15 a.m. the sanctity it deserves, is the real poser. Of course, P.W.8 has spoken about his travel to Neyveli initially and finding the Magistrate absent, his having proceeded to Cuddalore to deliver Ex.P-3 to the court clerk/at 2.00 p.m. If the court clerk had received it at 2.00/ p.m., in fairness, it should have been handed over to the Magistrate without further delay. Again, Exs.P-1 and P-2, which were forwarded to the Magistrate through a police constable, had also reached the Magistrate only at 6.00 p.m., as we are able to find from the endorsement on the documents. The carrier of those documents has not been, unfortunately, put into the witness box to explain the delay. It may be that the delay is not sinister, but such evidence must have been brought on record. Since it had been suggested that Ex.P-1 had come into existence only after arrival of the police, at the scene and the prosecution has not put into the witness box the carrier-police constable, to explain the circumstances which caused the delay in handing over to vital documents, to the Magistrate, it will be better to exclude Ex.P-1 from consideration. We must mention that we are excluding Ex. P-1 from consideration, not because we doubt the appearance of appellant before P.W.1, but because of the long delay in its receipt by the Magistrate, which has not been sought to be explained, though offering of an explanation was a matter of availability. The second classification shall stand disposed of accordingly. 21. Then we have the last piece of evidence under category 3 and that is Ex.P-11, the judicial confession made by the appellate before P.W.13, she then Judicial Second Class Magistrate, Panruti. Ex.P-11, to our minds, is a very vital piece of evidence. The second classification shall stand disposed of accordingly. 21. Then we have the last piece of evidence under category 3 and that is Ex.P-11, the judicial confession made by the appellate before P.W.13, she then Judicial Second Class Magistrate, Panruti. Ex.P-11, to our minds, is a very vital piece of evidence. Merely because Ex.P-11 stands retracted, through the statement made by the appellant in court under Sec.313, Crl.P.C, it does not lose its value. All that would be required will be the satisfaction of this Court, that Exs.P-11 was voluntarily made and the other evidence brought on record afford general corroboration to affirm the truthfulness of the contents of this confession. Appellant was produced before the Sub-Inspector of Police at 8.15 a.m. on 38. 1987 and soon thereafter he was arrested. On the third day, he was produced before P.W.13, after the formality of a communication being forwarded to the Chief Judicial Magistrate, to arrange for recording of judicial confession from the appellant and a consequent order with the follow-up direction to P.W.13 to proceed to record the confession of the appellant, if he was prepared to offer one. We, therefore, make it, that without any delay, whatever, appellant was produced on 9. 1987 before P.W.13 and on that day, P.W.13 after about of questions addressed to the accused, as ordained by law, was satisfied that the appellant was prepared to give a statement, voluntarily, but in spite of it he sent him away for reflecting for 24 hours, as is usual before directing his production on the next morning. On 9. 1987, the appellant was produced at 3.15 p.m. before P.W.13 and on this occasion also, the learned Magistrate warned the appellant that he was not bound to confess and if he still chose to confess voluntarily, that confession will be used against him in evidence. Before, the learned Magistrate recorded the confession itself on 9. On 9. 1987, the appellant was produced at 3.15 p.m. before P.W.13 and on this occasion also, the learned Magistrate warned the appellant that he was not bound to confess and if he still chose to confess voluntarily, that confession will be used against him in evidence. Before, the learned Magistrate recorded the confession itself on 9. 1987, he has made an endorsement, which reads as follows: “I am satisfied that from the answers given by the accused and from his demeanour, that he is willing to give a voluntary statement free from any outside or police influence.” We must also state, that before putting 13 questions to the appellant, the learned Magistrate has made an endorsement that those questions were put to the appellant to satisfy himself as to whether the appellant was willing to give a voluntary statement free from police or other influence. The working of the mind of the learned Magistrate, to satisfy himself, before he recorded the confession of the appellant is, therefore, apparent. 22. Mr.R.Balasubramaniam, appellant’s learned counsel contended that in terms of Sec. 164(2), Crl.P.C. the Magistrate shall, before recording such confession, explain to the person making it that he was not bound to make a confession and that if he did so, it may be used as evidence against him and the Magistrate shall not record any such confession unless, upon questioning the person making it, he had reason to believe that it was being made voluntarily. The crux of the submission was, that on the record, the Magistrate was bound to make an endorsement, about his reasons to believe that a confession was being made voluntarily. There was no quarrel that the formalities contemplated under sub-clause (2) of Sec. 164, Crl.P.C. were complied with, except prob-ablyjthe non-user of the words “reason to believe” as found in the section. Arguments were advanced about the objective and subjective satisfaction of the learned Magistrate. In support of his contention, appellant’s learned counsel invited our attention to a decision of the Supreme Court in Chandran v. State of Madras A.I.R. 1978 S.C. 1574: 1978 Crl.L.J. 693: (1978)4 S.C.C. 90 : 1978 S.C.C. (Crl.) 528. Arguments were advanced about the objective and subjective satisfaction of the learned Magistrate. In support of his contention, appellant’s learned counsel invited our attention to a decision of the Supreme Court in Chandran v. State of Madras A.I.R. 1978 S.C. 1574: 1978 Crl.L.J. 693: (1978)4 S.C.C. 90 : 1978 S.C.C. (Crl.) 528. In that case, the Supreme Court stated that the term “believe” in the sense in which it was used in Sec. 164, has “logical confidence” or “national conviction” as its essential element and it imported a very high decree of expectation brought by reason, a satisfaction fast-rooted, in terra firma, free from doubt as to the truth of the fact perceived and believed. It was further observed that if the Magistrate recording a confession of an accused person produced before him in the course of police investigation, does not on the face of the record, certify in clear, categorical terms, his satisfaction or belief as to the voluntary nature of the confession recorded by him, nor testifies orally as to such satisfaction or belief, the defect would be fatal to the admissibility and use of the confession against the accused at the trial. In the instant case, not only we have the endorsement made by P.W.13 in Ex.P-11 itself, about his satisfaction on the basis of answers given by the appellant and his demeanour, that he was willing to voluntarily offer a confession statement, but we also have the substantive evidence of P.W.13 affirming this facet. P.W.13 has deposted that with a view to find out if the appellant was inclined to voluntarily offer a confession, he questioned him. He has also deposed about the certificate issued by him, in Ex.P-11 itself, on such satisfaction. It is not the law. laid down by the Supreme Court that the exact words “reason to believe’ will have to be brought on record in the endorsements made by the Magistrates. The substance of such reasons to believe must get exhibited. On the fact situation before us, it is clear that the learned Magistrate had satisfied himself that the appellant was anxious to voluntarily confess and the evidence of the Magistrate conveys the logical confidence and rational conviction, that had gone into that certificate. 23. Now that this contention has been answered against the appellant, let us now analyse the contents of Ex.P-11. 23. Now that this contention has been answered against the appellant, let us now analyse the contents of Ex.P-11. Appellant has stated therein, that his wife (D-1), after quarrelling with him, used to go away quite often to her mother’ house. He has further admitted his addiction to drinking which was not relished by his wife. He has narrated in detail about his having met D-1 at or about 7.00 p.m. on 30.8.1987 at the residence of P.W.5 and asking her to come home and feed him, to which she replied that he had to cook for himself and eat it. It is also mentioned in the confession about D-1 having arrived home a little later and on being questioned, stating that she had already taken her dinner. Thereafter, he would have it, that D-1 abused him in vile language. He has stated therein that he wanted P.W.2 to purchase betal and nuts for him and that was prevented by D-1, directing her son not to do that job. He has described about all of them having gone to bed at 11.00 p.m. and availability of an axe and a spade in the house. Later, in the night, he searched for betels inside the house and nonavailability provoked him, since his wife had earlier prevented his son from getting betels. In such anger, according to him, he picked up the axe and cut on the head of his wife. That cut, according to his confession, fell on D-2, his three year old daughter. He noticed blood gushing out of the head of the deceased. He thereafter, threw the axe at the scene. He has described that, at the same time his sleeping children had awakened and that their screams brought near the scene P.W.4 and others. He has also mentioned about those people who had gathered, having caught hold of him after search with a battery light and manhandling him by tying him on a cart wheel. He has then stated that at 9.00 a.m. the police arrested him at the scene. His final statement in Ex.P-11 is that he had cut D1 with an axe in anger A reading of Ex.P-11 creates an impression that the appellant was anxious to exculpate himself from the murder of D-1, for he claims that one cut aimed at his wife, fell accidentally on his minor girl. His final statement in Ex.P-11 is that he had cut D1 with an axe in anger A reading of Ex.P-11 creates an impression that the appellant was anxious to exculpate himself from the murder of D-1, for he claims that one cut aimed at his wife, fell accidentally on his minor girl. That the appellant was not speaking the truth on that aspect is clear, for the medical officer has found several cuts on the dead body of D-2 and hence the claim that only an accidental cut had landed on D-2 cannot stand even a women’s scrutiny. There was no scope for any anger, provocation, sudden or grave enough, at the time when the appellant chose to axe his wife to death. It is not as though the spouses were friendly and co-operative from the beginning of their marriage, for it is evident that day in and day out, they used to periodically quarrel and separate themselves, before joining over again on the pacification moves, initiated by the appellant. There was no scope, whatever, on that particular night for the appellant to have lost his temper, on the material found in Ex.P-11. The fact remains that through Ex.P-11 appellant had demonstrated that he was inflector of a cut or cuts on D-1, which ultimately resulted in her death. The admissibility and acceptability of Ex.P-11 will have to be considered, for Ex.P-11 seeks to exculpate the appellant from the charge of murder of D-2 and seeks to plead for an exception in respect of murder of D-1. A little earlier, we have stated that even if a part of the confession is exculpatory it will still be possible to record a conviction on the inculpatory part of it, if the court is satisfied not only about the inherently improbable nature of the exculpatory part but also by piecing of the same on the basis of others evidence on record. 24. In Nishi Kant v. State of Bihar, A.I.R. 1969 S.C. 422, after extracting the principle of law laid down in earlier cases, the Supreme Court stated as follows: “In this case the exculpatory part of the statement in Ex.6 is not only inherently improbable but is contradicted by the other evidence. 24. In Nishi Kant v. State of Bihar, A.I.R. 1969 S.C. 422, after extracting the principle of law laid down in earlier cases, the Supreme Court stated as follows: “In this case the exculpatory part of the statement in Ex.6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant’s attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under Sec.342, Crl.P.C. to the effect that he had received the injury in a scuffle with a herdsman." After referring to certain other circumstances, the Supreme Court ultimately concluded, that in circumstances like those detailed by it and there being enough evidence to reject the exculpatory part of the statement of the appellant in Ex.6, the High Court had acted rightly in accepting the inculpatory part and piecing the same with other evidence to come to the conclusion that the appellant was the person responsible for the crime. 25. The same principle was reiterated by the Supreme Court in Bhagwan Singh v. State of Haryana, A.I.R. 1976 S.C. 1797. In that case, after detailing the facts, the Supreme Court stated that the exculpatory part may therefore be not of much consequence for the rest of the statement, went to establish beyond any doubt, that the postal parcel was delivered to the appellant by P.W.5 in that case. Several other admissions of the appellant were taken note of and ultimately it was found, that those admissions of the appellant stood corroborated by other satisfactory evidence on record on the material particulars. The principle laid down therein was that it was permissible to believe one part of the confession statement and disbelieve another and it was enough that if the whole of the confession was tendered in evidence, so that it may be open to the court to reject the exculpatory part and take the inculpatory part into consideration, if there were other evidence to prove its correctness. 26. 26. Again in Mohan Lal v. Ajit Singh, 1978 Crl.L.J. 1107, the Supreme Court stated as hereunder: "An attempt was made to argue that if the statement of the respondent is to be considered at all, it must be taken as a whole and that it is not permissible to act upon one portion of the statement which shows the presence of the respondent in the company of the deceased and leave out those portions which are exculpatory. It will be enough to say that the matter has been examined by this Court in Nishi Kant Jha v. State of Bihar, (1969)2S.C.R. 1033: A.I.R. 1969S.C.422, and as the evidence on record disproves the exculpatory part of the respondent’s statement in the trial court, it is clearly permissible to accept that part of the statement which accords with the evidence on the record, and to act upon it." In Kanda Padayachi v. State of Tamil Nadu, A.I.R. 1972S.C. 66: 1972 M.L.J. (Crl.)251: (1972)1 M.L.J. (S.C.) 70: (1972)1 An W.R. (S.C.) 70: (1972)1 S.C.J. 395, it was observed that the statement made by the accused in police custody to the doctor, that the injuries on his person were caused by the murdered person, amounted to admission of fact, though incriminating and admissibility of that statement was not barred under Sec.26. Though it may not be directly relevant to the view posed in this case, the broad principles get recognised. So, we find no impediment in holding that Ex.P-11 was voluntarily made by the appellant and it indicates that the appellant was the assailant of both the deceased. His plea that accidentally one single cut fell on D-2 is so contra to other evidence on record, inclusive of medical evidence furnished by P.W.11, Dr.Aysha, showing that D-2 had on her, as many as five incised wounds on different parts of her body and certainly a single accidental cut would not have caused such multifarious injuries. We have enough and more corroboration to this confessional statement, from other evidence. 27. Appellant has stated that he threw away M.O.1 axe, at the scene. Recovery of M.O.1 at the venue of crime, is a piece of evidence in corroboration. He has mentioned about the arrival of P.W.4 in the company of others and their trying to pitch upon him. 27. Appellant has stated that he threw away M.O.1 axe, at the scene. Recovery of M.O.1 at the venue of crime, is a piece of evidence in corroboration. He has mentioned about the arrival of P.W.4 in the company of others and their trying to pitch upon him. The later part as though he was caught and kept till the police arrived, is so contrary to the other acceptable evidence brought on record through P.Ws. 1, 4 and 5 and that part of the confession of the appellant can easily be eschewed. The evidence of P.W.3 confirms that part of the confession that the appellant wanted him to get some betel leaves, but it was prevented by D-1. The only difference is, instead of betel leaves, P.W.3 states that his father asked him to get beedies. That can hardly make any dent in the prosecution case. The scene of occurrence and the manner of occurrence, mentioned in Ex.P-11 have abundant corroboration from other evidence on record. We accept the inculpatory part of Ex.P-11, since we are of the opinion that it can safely be accepted on the principle of law laid down by the Supreme Court and on the foundation of other overwhelming evidence available, pointing to the guilt and guilt alone of the appellant. 28. As we have already stated, medical evidence in corroboration is available. Recovery of axe at the scene, which was found to contain human blood, will also be one more fat confirming the occurrence having taken place as alleged by the prosecution and the author of these crimes being the appellant and the appellant alone and none else. We are satisfied that the learned trial Judge has correctly found the appellant guilty of those murders. 29. Convictions and sentences imposed on the appellant, under both counts for murder, shall stand confirmed. This appeal, which has no merit, shall stand dismissed.