1. The accused has been convicted of the murder of his wife Mukta and sentenced to transportation for life. Mukta, who appears to have been a woman of very bad character and was reputed to have several lovers, lived with her husband, the accused, at Soni, a village in the Tasgaon taluka. Early on the morning of June 4, 1932, she was found lying dead in the angan of her house with her skull fractured. There was a heavy stone weighing thirty-eight seers lying close to the body. It was obviously a case of murder.
2. A witness Vithu Jayaji, Ex. 10, has deposed that as ho was passing by the accused's house early in the morning on his way to his field he heard cries in the compound and the accused came out of his house and said: 'I was sleeping inside and she was sleeping outside, some one has murdered her, go and inform the Police Patel.' The witness says that at that time he saw a heavy stone lying near the corpse. He went and gave the information to the Patel, who reported the matter to the police.
3. The Sub-Inspector arrived on the night of June 4, and, after making inquiries from the accused's relations and other persons on the 5th, he arrested the accused on the 6th. On the 7th he sent the accused to the Magistrate at Tasgaon in order that his confession might be recorded. The accused made a confession which was recorded on the 9th. It will be better to give this confession in full since it is the main foundation of the prosecution case against the accused. After the preliminary examination the accused stated as follows:-
There was a quarrel between me and my wife. My wife was of very bad conduct. I and my wife were living separate in my house. I always came to hear complaints about her bad conduct. I felt much dejected. I thought I should give up this wordly life and go somewhere. Some would say that she had been in illicit intercourse with a Mang, others would say that she had been in illicit intercourse with a Maratha. In these circumstances I thought I should not show my face to any body and should go somewhere. At my village there was a marriage ceremony in the house of my relation seven or eight days ago. People would look at me and laugh. I would be ashamed. The marriage ceremony was over. The people went back to their villages. On Friday night there was a fair in the Maharwada. I had been to the garden land in the Gavadan field. I sat at the well and thought over. I was tired of my life. At 11 p. m. I returned from the garden land. I sat on a log of wood that was in front of my house. After a short while I went into the house. My wife was not in the house. She came back after an hour. I questioned her as to where she had been, She said nothing. She slept outside in the court-yard. I became desperate. I started in order that I should go somewhere, I stood near the heap of stones. I picked up a very large stone there with both hands, brought it and threw it standing near by on the head of my wife who had slept. Her head was broken. Blood oozed out. She made no movement at all nor did she raise a cry. She died instantaneously. I went into the house and slept. There was a row outside forthwith. I opened the door and cams out and sat there. A number of people had gathered. The Patil and the Talathi came on Saturday morning and made a Panchnama. The Police came.
4. On July 20, in the Court of the committing Magistrate the accused retracted his confession and stated that he had made it through fear of the Fauzdar Saheb. At that time he gave no details and did not explain why he was afraid or what had happened to him. When he was examined at the trial by the Sessions Judge he alleged that the Sub-Inspector had told him that unless he confessed he would disgrace and ill-treat his sister. He also alleged that at the time when he made his confession there were three policemen in the Court who were threatening to torture him.
5. Mr. Adarkar who appears for the appellant in this case has relied upon certain remarks of Mr. Justice Wadia in Emperor v. Housabai : (1932)34BOMLR1240 and contends that, as the accused's confession has been retracted, it should not be acted upon without independent corroboration in material particulars. Now it is obvious that the retractation of a confession is a circumstance of very varying importance. Its significance depends on the nature of the confession, the circumstances in which it was made, the circumstances in which the retractation was made, and the nature of the retractation. If a full and detailed confession is made in circumstances which make it unlikely that it was the result of coercion or inducement, the fact that it is subsequently retracted may mean little or nothing : for the making of the confession can hardly be explained except on the hypothesis that it is true, whereas the retractation may easily be explained as an act of policy, the result of legal advice or the pressure of friends or the suggestion of more sophisticated associates in the lock-up. If a confession is retracted at the earliest opportunity more weight may fairly be attached to it than if the accused waits until the Sessions trial; and a retractation which takes the form of a mere denial of the fact of making the confession can hardly ever be given the same importance as one which admits the making of the confession but explains it as due to coercion or illegal inducement. If there is anything in the evidence which lends support to a suggestion of the latter kind, the confession must always be most carefully scrutinised and the Court should be cautious about relying upon it. That I take to be the real effect of the retractation of a confession. It does not cancel out the confession, but it puts the Court on inquiry as to its value, its voluntary character and the probability of its being true. And that is why it has been laid down frequently by the Courts that as a general rule a retracted confession requires corroboration of some kind, although as a matter of law corroboration is not necessary at all as was pointed out by this Court in Emperor v. Rama Kariyappa : (1929)31BOMLR565 . But the amount of corroboration which the Court will look for depends on the circumstances of the particular case, and sometimes very slight corroboration will suffice.
6. In this present ease the accused retracted his confession at the earliest opportunity, that is to say, when the case came before the committing Magistrate, and he has made allegations of illegal inducement of the confession on the part of the police. But there is no evidence here which would justify one in attaching any importance to these allegations, It appears that every possible precaution was taken by the Magistrate who recorded the confession. The accused reached him on June 8. His confession was not recorded until the 9th. So that he had time to think the matter over, In the certificate which the Magistrate has appended to the confession he says :-
I explained to Krishna Babaji that ha is not bound to make the confession, and if he does so, any confession he may make may be used as evidence against him. This was explained to him yesterday when he was brought before me and even before recording the confession to-day. Ha was given sufficient time for reflection and I believe from the manner in which he gave the statement that the confession was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him.
The questions prescribed by the High Court were duly put and the accused stated that he had come to make a statement of his own free will, that he had not been threatened or induced by any one to make the confession, that he was aware that he was not bound to make a confession, and that, if he did, it would be used against him, and that knowing this and having fully thought over the matter he was nevertheless prepared to make a confession. If the accused had been treated as he subsequently alleged he had been, there is no reason that I can see why he should not have told the Magistrate about it. Moreover, as the Judge has suggested in the course of his judgment, in a case of this kind, having regard to the bad character of Mukta, everybody's sympathies would have been with the accused, and it is difficult to believe, therefore, that the police would go out of their way to put pressure upon him to make him confess. The accused was arrested on June 6 and he was no doubt in the custody and power of the police till he was sent to the Magistrate on the 7th and indeed until he reached the Magistrate's Court on the 8th. But that was inevitable under the circumstances. Soni is at a considerable distance from the Magistrate's Court and this fact, therefore, does not justify any inference against the police. The Sub-Inspector was a witness, and, although he was cross-examined in considerable detail on some points, no questions were put to him with regard to the allegations made by the accused. As I have mentioned already, in the committing Magistrate's Court the allegations were quite vague, and at least one of the allegations made by the accused in the Sessions Court is plainly absurd. It is impossible to believe that the Magistrate would allow three policemen to stand in Court and threaten the accused while his statement was being recorded. Under these circumstances, having regard to the remarks which I made at the beginning, it is not a case in which very much need be looked for in the way of corroboration of the confession.
7. There is, however, corroboration of the confession. We do not consider that much importance can be attached to the corroboration on points of detail mentioned by the learned Judge in his judgment, viz., the fact that the stone found lying near the corpse was similar to those in the heap of stones referred to by the accused in his confession, and the fact that there is a witness Mira Mangf, Ex. 13, who deposes to having seen the accused sitting upon a log. But there is corroboration of another kind. The accused and his wife were the only people living in that house. Mira Mang's evidence, Ex. 13, is important in this respect that it shows that the accused was sitting about apparently waiting for his wife fairly late on the evening before she met with her death. There is a witness Yeshwant Tukaram, Ex. 22, who deposes that he saw Mukta going home about 10 p. m. on that same evening. Although it appears that Mukta used to sleep in the angan and the accused slept inside a room, it seems hardly likely that Mukta could have been killed without the accused knowing who did it and how it happened. In. any case if the accused did not do it himself, it is difficult to see what possible motive he could have had for taking the blame of the crime upon himself and thereby letting off the real culprit. Mr. Adarkar suggested that he was fond of his wife and when she was dead he lost heart and confessed to having committed the crime and so indirectly committed suicide. This suggestion, however, does not appeal to us. It is to be remembered further that the accused had an obvious motive for killing his wife in the sense that she was a bad woman whose conduct had brought him into disgrace and ridicule. If his confession is true,-and we believe it is-then he had further provocation on that very night, for he says that when he asked her where she had been so late at night she gave no answer of any kind. It is quite easy to understand that her conduct may have so worked upon his feelings as to drive him to kill her.
8. On the other hand it does not appear that any one else had any motive for killing her. There is no doubt the evidence of the accused's sister Abai, who has deposed about a quarrel between the deceased and one Shripati Mang, and has also stated that the accused and Mukta were on good terms and that on the night when Mukta was killed the accused was shut up in a room which was chained from outside, so that he could not have possibly committed the murder. What Abai says about Shripati Mang is this. She heard Mukta say to the Mang 'You do not do your work properly. You speak bad language and I will tell my husband.' From the language used, Abai explains, she thought that they were on terms of criminal intimacy. Mukta then said 'I will tell my husband.' He said 'Why do you require your husband, I will show you.' This is the main foundation for a suggestion made on behalf of the defence that Mukta had really been killed by Shripati Mang, though why Shripati Mang, if he was Mukta's lover should wish to kill her is not explained. As the Judge points out there is nothing in the words deposed to by Abai, even if her evidence is true, which would be calculated to provoke Shripati to murder his mistress. As to Abai'a statement that the accused and Mukta were on good terms she has also admitted that they frequently quarrelled and that the accused was always dejected. Her statement that the accused was shut up in the room is contradicted by the evidence of Vithu Jayaji and cannot be true. The trial Judge says that Abai's demeanour was very unsatisfactory, that she was apparently prepared to give any answer that was suggested by leading questions and that her evidence was quite unworthy of belief. We see no reason to differ from the learned Judge's opinion of this witness.
9. It seems, therefore, that the accused's confession is in accordance with all the probabilities of the case. It explains the killing of Mukta in a perfectly natural way, and as far as we can see there is no other reasonable explanation of it. Under these circumstances we hold that the accused's confession ought to be accepted and. acted upon in spite of the fact that it was retracted.
10. We confirm the conviction and sentence, and dismiss the appeal.