S. K. Chawala, J. -- 1. Appellant Fundi, aged about 52 years, has filed this appeal, challenging his conviction under two heads under section 302 I.P.C. and sentence of imprisonment for life inflicted for each of the two offences, for committing murders of his own daughters, Kalawati aged 13 years, and Guddi aged 9 years, while they were asleep in his house on the night of 22nd/23rd October, 1983, in village Chak Sarwa, P.S. Gohad, district Bhind.

2. The prosecution case rested on the statement of appellant Fundi, recorded as dying declaration (Ex. P-17) by Naib Tahsildar and Executive Magistrate, Shri Purshottam Gupta (P.W.9) and circumstantial evidence. The said dying declaration (Ex.P.17) was excluded, and rightly, from consideration by the trial Court. It was alleged that in the wake of the incident, the accused had caused injuries to himself in a bid to end his life and was in a serious condition, when his statement was recorded by Shri Purshottam Gupta (P.W.9) in Gohad Hospital, on 23.10.83, at 5.15 p.m. That statement so far as it released to the cause of his own injuries would have been admissible as dying-declaration. But since the maker of the said statement chanced to survive, the said statement is clearly not admissible as dying declaration. It could be admitted in evidence as a previous statement of the maker for corroboration under section 157 of the Evidence Act or for contradiction under section 145 ibid with respect to his evidence in Court. But an accused, rarely 'if ever, examines himself as a witness in his defence in Court. The accused/appellant, in the present case, also did not examine himself in his defence. There was, therefore, no occasion for the use of that statement. A look at that statement would show that a part of it was a plenary acknowledgement of guilt in which the accused in so many words admitted to have dealt a number of blows with a spade (Phawda) on his two daughters and done them to death. It was, therefore, if at all, a ' judicial', as distinguished from 'extrajudicial confession'. But even as a judicial confession, it was absolutely in-admissible in evidence. The simple reason for that was that it was not recorded by a Magistrate empowered to do so. Reading of section 164 of Code of Criminal Procedure, 1973 would show that only a Metropolition Magistrate or a Judicial. Magistrate is empowered to record a confession under that provision. Shri Purshottam Gupta (P.W.9), who recorded it, was an Executive Magistrate, who had also not observed the safegaurds described in section 164 ibid. When a confession is recorded by a Magistrate who is not empowered, it is absolutely inadmissible. Even oral evidence about it by the Magistrate is inadmissible. Reference may be made in this connection to Supreme Court's decisions in State of U.P. v. Sinchara Singh in A I R 1964 S C 358 and Nika Ram v. State of M.P. in A I R 1972 S C 2077.

3. This left the case as based only on circumstantial evidence. From postmortem reports, EX.P.1-A and P-2-A proved by Dr. Mittal (P.W.1), it appeared that deceased Guddi had an ante-mortem lacerated wound 6" x 5" x brain-matter deep, on her right side of scalp extending upto face. Below that injury there was a communited compound fracture of right frontal, parietal and temporal bones with fracture of maxilla of the right side. The membrances and the brain matter were lacerated. She had died of injury to sclap, skull and brain leading to coma and death. The injury to her was sufficient in the ordinary course of nature to cause death. The other daughter Kalawati had 5 ante-mortem wounds, namely, a penetrating wound 1/2"x1/4"x1/3" 2/3" on the right side of the face, another penetrating wound 1/2"x1/4 "x1/2" on the right side of the frontal region of scalp, a lacerated wound 1" x 1/4"x brain deep on the right side of the occipital region of scalp and lastly, communited fracture of the lower jaw and right upper jaw with fracture or upper right central, lateral incisor too