JUDGMENT
K.S. Hegde, J.
1. This is a very sad case. A young lady and two of her children were killed on the night intervening 30rll-56 and 1-12-56 in their residential house in Varoor village, Dharwar District. The accused who is the husband of the deceased Devakka and the father of deceased Nemchandra and Basawwa is charged with having murdered his wife and his two children.
2. The Prosecution case is that the accused who used to suffer from fits of insanity and thus given to insane impulses was also given to gambling which created financial troubles for him and thereby he was constrained to sell portions of his ancestral lands. It is said that his wife being worried about his conduct used to constantly find fault with him. This is said to be the motive for the murders in question. We have the evidence of P. W. 1. the police patil on this Point.
3. The pleas taken on behalf of the accused are somewhat incongruous. He denies having anything to do with the incident in question but at the same time, a plea of insanity is also Put forward on his behalf, A plea under Section 84 of the Indian Penal Code implies an admission on the part of the accused that the acts for which he was; prosecuted were done by him. Unifluenced by his inconsistent pleas, we shall proceed to consider the prosecution case on its own merits,
4. We shall first take up for consideration the prosecution evidence bearing on the guilt of the accused. That evidence may be classified under two heads, i.e. (1) the confession statement of the accused given under Section 164 of the Code of Criminal Procedure and marked as exhibit 29 in the case; and (2) circumstantial evidence. There are no eye-witnesses to the occurrence.
5. The fact that the wife and two children of the accused were killed on the night intervening the 30th of November and the 1st of December, 1956, in the house of the accused is not challenged. The Doctor who conducted autopsy on deceased Devakka and her two children, deposed that deceased Devakka had sustained as many as 18 injuries, out of which seven were punctured and seven incised; deceased Nemchandra had sustained two injuries, one of which was an incised injury measuring 5″ long and 2 3/4″ wide, cutting the trachea, right carotid vessels, sternomastoid muscles and other muscles below; deceased Basawwa had sustained four injuries, out of which three were incised injuries. According to medical opinion, all these injuries could have been caused by a sharp cutting weapon like a scythe and the injuries sustained by each one of the deceased Persons were sufficient in the ordinary course of nature to Cause death.
6. Now, coming to exhibit 29, the confession statement, according to the prosecution, the accused, gave the same before the Executive Magistrate, Hubli, voluntarily. He was produced before the Magistrate at 5-45 P. M, on 4-12-56 for recording his confession. The learned Magistrate after duly warning him granted hirn two days’ time for reflection. He was again Produced before the learned Magistrate at about 1 p. m. on 6-12-1956. In exhibit 29 the accused stated as follows:
On 30-11-1956, myself, my wife and one male and one female children slept in our house at about 9 p. m, I could not get sleep. At about 3-30 a. m. on 1-12-56 I got a sickle from the drawing room of my house (radasali) to murder my wife who was asleep, I created some noise in getting the sickle and by this noise my wife was awakened and sat on her bed. She stretched her left hand and then I cut her neck. She died. My son aged about 7 years who was also awakened, was standing though I had pressed his neck to kill him. He ran to the door to open it. I held him and cut his throat with the sickle. Then I killed my daughter aged about 3 years. I do not remember if I killed her by Cutting her throat or pressing the throat. Thus I killed all. There were none else in my house. I closed the front door and informed the Police Patil immediately. Then the Police Patil arrived to the scene. The dead bodies were there. I did all this without any intention. I have nothing more to say.
The question for consideration is whether this was a voluntary statement and whether the facts stated therein can be accepted as true. The medical evidence, in a way lends Corroboration to the facts stated in the above statement. According to the evidence of the Doctor, injuries found on the deceased persons could have been caused by a sickle. Further corroboration is available from the evidence of P. W. 1 who says that the accused went to his house during the early hours of the morning of 1-12-56 and after giving him a statement, took him to the scene of occurrence and showed him the dead bodies of Devakka and her two children.
The probabilities of the case also lend support to the version given in exhibit 29. Hence there is no reason to disbelieve the truth of the version given therein. But the more important question is whether it was a voluntary statement. Before we proceed to consider that aspect, we may dispose of one other contention. In his statement under Section 34.2 Cr. P.C., the accused denied having given a confession statement. This plea was evidently taken because P. W. 13 the Executive Magistrate in the course of his chief examination stated that he could not remember whether the accused before the court is the very person who gave the confession in exhibit 29.
Evidently he was not able to remember the face of the person who gave that statement. But the suggestions made in the course of his cross examination make it abundantly clear that the accused counsel did not challenge the fact that exhibit 29 was the statement given by the accused. The entire cross-examination was directed to show that it was given under police pressure or influence. From the evidence on record there is little doubt that the accused was produced before P. W. 13 on 4-12-1956; thereafter he was remanded to judicial custody and on 6-12-56 his statement was recorded. Hence, we need focus our attention only on the question of the voluntary character of the statement in exhibit 29.
7. The Court below was of the opinion that the confession statement exhibit 29 cannot be made the basis of conviction in view of certain irregularities committed by the Magistrate who recorded the confession. The irregularities noticed by the learned Sessions Judge are: (1) The accused was produced before the Magistrate at about 5-45 p. m. i, e., fifteen minutes after the Court time was over; (2) The Magistrate did not tell the accusec that he was a Magistrate; and (3) The Magistrate did not append a Certificate as required by Section 164(3) Cr. P.C.
8. On the first point, reliance was placed or. the decision of this Court in ShantapPa Yamanappa v. State of Mysore, 37 Mys LJ 462. It is clear that the Court below mis-read that decision, In that case, the confession statement was recorded at night; whereat, in the present case, it was recorded during Court hours. The decision in question did not say that the accused should only be produced before the Magistrate during court hours. The Production of the accused is one thing and the recording of the confession is a wholly different thing. The learned Sessions Judge mixed up the former with the latter.
9. It is true that P. W. 13 did not tell the accused that he was a Magistrate. As observed by this Court in Re: ShivabasaPpa Rayappa v. Emperor AIR 1959 Mys 47 it is very necessary that the accused should be apprised before the Magistrate commences recording the statement that he (the accused) was in the free atmosphere of a Magistrate’s Court. But this is not a rule of law, but a rule of caution. If from the record kept by the Magistrate, or otherwise it can be reasonably deduced that the accused would have known that he was in the free atmosphere of a Magistrate’s Court, the omission to tell him that he was in a Magistrate’s Court, will not vitiate the confession.
From the several questions put to the accused and the answers given by him, it is possible to hold that he (accused) would have known that he was in a Magistrate’s, Court. The accused belongs to an upper middle-class family. There would not have been any difficulty for him to distinguish a Magistrate from a Police Officer. Hence, the omission pointed out by itself cannot vitiate the confession statement on the ground that it was not voluntarily given.
10. The last circumstance relied on is the failure of the Magistrate to append a certificate as required by Sub-section (3) of Section 164 of the Code of Criminal Procedure. Cases have repeatedly held that this is only an irregularity, curable under Section 537 Cr. P.C.P. W. 13 was sworn that he was satiated even at the time of recording the confession statement that it was voluntarily given. He has given evidence in. a very straight-forward manner. He is a responsible officer., There is no reason to disbelieve his evidence.
11. In considering whether the confession statement was’ voluntarily given or not, we must bear In mind the fact that the accused at no stage stated that it was not given voluntarily. He was the best person who could have spoken about it. His failure to do so has its own importance. In our view, exhibit 29 was voluntarily given,
12.-13. The evidence afforded by exhibit 29 is supplemented by the circumstantial evidence available in the case. After discussion of evidenced His. Lordship proceeded. The cumulative effect of the evidence adduced leaves us in no doubt as regards the culpability of the accused.
14. The prosecution has led some evidence to show that on the information given by the accused the sickle Article No. 22 and some burnt clothes [Articles Nos. 23 and 24) were recovered. We do not think that any reliance can be placed oil this evidence. It is seen from exhibit 5, the Such and report, that even when the police patil went to the house of the accused on the morning in question, he noticed there a blood-stained sickle and brunt pieces of clothes. Therefore, there was nothing for the investigating Officer to discover on the information given by the accused. Hence, we have excluded from consideration the evidence relating to the recovery of Article Nos. 22, 23 and 24.
15. We now come to the alternative plea taken by the accused, i.e., the plea of insanity. In considering that plea it must be borne in mind that we are concerned with legal insanity and not medical insanity. In other words, the accused has got to establish that while he killed his wife and children. by reason of unsoundness of mind, he was incapable of knowing the nature of his acts or that he was doing what was either wrong or contrary to law. The true scope of Section 84 of the Indian Penal Code was considered by a Bench of this Court, of which one of us was a member, in Raju Shetty v. State of Mysore, 37 Mys LJ 786 : (AIR 1960 Mvs 48).
Hence, it is unnecessary to go into that question over again. The evidence in this case shows that the accused was getting fits of insanity now and then and he used to be violent during those occasions. It is further proved by the evidence of D. W. 1 Abdul Rashid as well as by the contents of Exhibits 39, 40 and 41, that the accused became insane when he was in jail in connection with this case, though he was quite sane during the trial of the case in the Court below.
His is not a case of continuous insanity; he was becoming insane off and on. It was elicited from P. W. 3 Shivamurtayya that the accused was in-same continuously for 7 or 8 years till he was arrested by the police in this case. This is obviously false. The evidence of P. W. 3 on this point is opposed to the evidence of P. W. 1 as well as that of the Investigation Officer. It is seen that the accused had sold seme items of his property some time before this incident; at about the time of occurence, he had entered into an agreement of sale. Then we have exhibit 29.
16. In a case’ of his nature what is of the essence is the state of mind of the accused at the time of the occurrence. To find out that, the Court has very often to take into consideration his state of, mind immediately before and immediately after the occurrence. As held in Raju Shetty’s case, 37 Mys LT 786 : (AIR 1960 Wys 48) the burden of establishing his plea is fairly and squarely on the accused. In this case, we have absolutely no evidence as regards the state of mind of the accused on the night of 30th of November, 1956. But, we have evidence :about his state of mind at about 4 a. m. on 1-12-1958.
From the evidence of P. W. 1, it is clear that the accused was sane at the time when he informed P. W. 1 about the occurrence. It was not elicited either from P. W. 1 or from the Investigating Officer that the accused showed any signs of insanity | on 1-12-1956. Further, it is clear from Exhibit 29 that the accused knew as to what he had done and that he had done a wrong thing. It may be and it is likely that his unbalanced mind might have partly contributed to the commission of the crime in question. But, that is not enough to bring the case under Section 84 of the Indian Penal Code.
17. In the result, the appeal fails and the same is dismissed.
