JUDGMENT
Govinda Menon, J.
1. The learned Sessions Judge of Tiruchirapalli Division in a carefully worded judgment, has found the appellant guilty of the offence of murder in that he intentionally caused the death of his wife Yasodai Ammal by stabbing her with a knife, M. O. 1, and thereby committed an offence under Section 302, Penal Code on 4th July 1949. The prosecution case is simple and lies in a narrow compass. Though the appellant and the deceased had been married about 7 or 8 years previously they had not been continuously living together. The reason ascribed for this separate living is the fact that the deceased was not well and was suffering from a very mysterious disease and therefore sometime before the date of the occurrence she had been taken away from the residence of the appellant to that of her parents where she was living at the time when she was murdered. It is stated that during the period when the deceased was living with her parents the accused occasionally used to visit her and that a few days before the murder when the accused wanted to take the deceased to his place of residence the parents of the latter interceded and a panchayat was held by which it was decided that the deceased should be sent to the accused’s house a few days subsequently. It was when matters were in that state that on 4th July 1949 at about 8 P.M. the accused reached the house of the deceased who at that time was ill and was confined to bed in the solitary room of the premises where the parents-in-law of the accused and his wife were residing. The evidence of P. W. 4, the mother-in-law, of the appellant is that at about 8 P.M., when the deceased was ill and lying indoors the accused came there and waited outside. The brother-in-law of the accused was sent as a messenger asking the deceased to go out and proceed with the accused to his house. The deceased sent word that she was ill and could not go out. The accused then came in and asked P. W. 4 to go out of the room and leave the deceased and the accused alone. It is stated that because P.W. 4 tarried a little she was pushed out by the appellant and the door was bolted from within, p W. 4 going and sitting on the pial of the house. A few minutes after the door was bolted she heard cries and screams of the deceased from the room where the deceased and the accused were alone except that there was a small child sleeping in the cradle and the alarm raised by the deceased was that she was being stabbed by the deceased. On hearing these plaintive and pitious cries P. W. 4 banged the door and tried to push it open but as it was bolted inside she could not open the door. The deceased is then said to have opened the door from inside by removing the bolt and rushed out with bleeding injuries on her person and the whole body full of blood. She cried out for help and reached the street, fell down and died. The accused came out with a blood-stained knife which has now been proved as M. O. 1, brandshing it and saying that he was unable to get the person he wanted, but that he had killed his wife also. The subsequent movements of the accused are proved by the evidence of P. W. 11, the Village Munsiff of Woraiyur, as well as P. W. 2, the officer in charge of the police station at Woraiyur, The evidence of P. W. 11 is to the effect that at about 9 P. M. when he was waiting for a bus at the junction of Tawker Road and Salai Road in order to go to the Tirucharapalli Port the accused came running from the north brandishing a bloodstained knife crying out that he would stab any person who went near him. On the accused seeing P. W. 11, the accused stated as follows:
“My wife is in my father-in-law’s house. I went there just now. She refused to yield to my wishes. Not merely that she abused me in foul language. I suspect her conduct. So I stabbed her with this knife and am going to the police station to make a report.” After informing P. W. 11 of what he had done, the accused straightway proceeded to the Woraiyur Police Station and reached the place at 9. 10 P. M. He appeared before P. W. 2 the Sub-Inspector of police with the blood-stained knife, M. O. 1, in his hand. The accused’s shirt and other clothes were blood-stained and he appeared to be very excited. He made a statement to the Police officer and surrendered the knife, M. O. 1. Thereafter the Sub-Inspector of Police P. W. 12, as well as the Inspector of Police went to the place and took up investigation. Later on, the accused was produced before P. W. 1, the Head-quarters Deputy Tahsildar and Second Class Magistrate, Tirucharapalli, on 5th July 1949 for the purpose of recording his confession. The Magistrate gave him time for reflecting for a period of 24 hours and subsequently the accused was again produced at 11 A. M. on 6th July 1949. A second warning was given to the accused and he was again sent back to the jail. Finally when the accused was produced on 7th July 1949 a third warning was given by the Magistrate and after that the statement of the accused now marked as Ex. P-1 was recorded by the Magistrate. The Magistrate’s endorsement is to the effect that it appeared to him that the confession made by the accused was voluntary.
2. The learned counsel for the appellant took objection to the admissibility of Ex. P-1 on the ground that the Sub-Magistrate had not strictly conformed to the provisions of Section 364, Cr. P. C. as well as Rule 85, Criminal Rules off Practice. It is no doubt true that Ex. P-1 does not contain the questions which the Magistrate put to the accused and the answers given by him in the direct form. But P. W. 1 states that he had Rule 85, Criminal Rules of Practice before him and put all the necessary questions which have been mentioned in that rule. As the accused answered that he was making the statement voluntarily and that there was no pressure brought to bear on him P. W. 1 did not record the questions and answers. P. W. 1 further states that he asked the accused a number of times whether he was making the confession voluntarily. In view of the evidence of P. W. 1, we are not satisfied that Ex. P1 is not admissible in evidence. The learned Sessions Judge was of opinion that it would not be proper to reject the evidence merely on the ground that the requirements of Section 85, Criminal Rules of Practice, were not strictly followed. Further the learned Sessions Judge was of opinion that apart from Ex. P-1 there was ample evidence in the case to justify the conclusion that it was the accused who committed the offence. In this connection we may refer to Section 533, Criminal P. C. which lays down that when any confession of statement of an accused recorded or purporting to be recorded under Section 164 or Section 364 is tendered or has been received in evidence and it is found that any of the provisions of either of those sections have not been complied with by the Magistrate recording the statement, the Court before whom such confession or statement is tendered shall take evidence that such person duly made the statement recorded, and then notwithstanding anything contained in the Evidence Act, Section 91, statement shall be admitted if the error had not injured the accused as to his defence on the merits. It is not suggested that the omission of P. W. 1 to record the questions and answers in the direct form has in any way prejudiced the defence of the accused and therefore we agree with the learned Sessions Judge that Ex. P-1 cannot be rejected on the ground that the Magistrate who recorded it has not strictly complied with the necessary questions which though he had put had not been recorded as part of Ex. P-1. We are therefore of opinion that EX. P-1 can be let in as evidence.
3. Apart from that we have the evidence of P. Ws. 4 and 5. The learned counsel for the appellant has not been able to suggest any reason as to why we should reject the evidence of P. W. 4. If the evidence of P. W. 4 has to be believed, it necessarily follows that the extra-judicial confession made by the accused to P. W. 11, the Village Munsif, has also to be accepted. Nothing has been alleged against the testimony of P. W. 11. We accept the evidence of P. W. 11, as well as the evidence as P. Ws. 4 and 5. We are therefore satisfied that the accused it was who stabbed the deceased and thereby caused her death. We therefore, are of opinion that the conviction of the accused under Section 302, Penal Code is perfectly justified.
4. The only other point for consideration is whether the extreme penalty of the law is necessary in the circumstances. We find that M. O. 1 is a knife, the blade of which is 8 1/2 inches in length and it is not a weapon which persons ordinarily carry. If the accused had stabbed the deceased as a result of any temporary and sudden anger or provocation, probably the case would have been otherwise. But the circumstance that the accused armed himself with such a deadly weapon as M. O. 1 before he went to his wife and asked her to go with him is a factor to be taken into consideration in deciding whether at the time the accused went to the house where the deceased was living he had any intention to inflict injury on the deceased if she had not followed him and acceded to his wishes. We find that the accused went to the deceased’s house with the object of causing her injury in case she did not follow him and accede to his wishes. In such circumstances, in our opinion, the learned Sessions Judge was justified in inflicting the extreme penalty of the law.
5. The appeal is, therefore, dismissed.