1. In this case the prisoner, Santya walad Bandu, a Mahar Christian, has been convicted of the offence of murder and sentenced to death by the Sessions Judge of Ahmednagar. The case has come up to this Court for confirmation of the sentence of death and the prisoner has appealed against both the conviction and sentence.
2. The evidence against the prisoner, may be shortly summarised. He was jointly tried with another prisoner, Yeshwada horn, Babul, wife of the deceased Babul, whom the appellant has been found by the Sessions Judge to have murdered. Yeshwada had made a statement before Mr. Mirikar, Special Magistrate, First Class, a few days after her arrest (See Ext. 31). In that statement she implicated the present appellant in the murder of her husband in her presence and she further averred that a few days before the murder the appellant had informed her of his intention to kill her husband. So far as her own part in the murder goes, she made no confession of her own complicity in the crime. The Sessions Judge has regarded this statement as a confession by Yeshwada and used it as evidence against the appellant under Section 30 of the Indian Evidence Act. The Sessions Judge remarks: 'that confession implicates accused No. 2 substantially to the same extent as it implicated accused No. 1, since on the admissions contained therein, though accused No. 2 took no actual part in the murder, she must be held to have intentionally aided it by omitting to give information of accused No. l's design as she was bound to do under Section 44 of the Criminal Procedure Code, and by giving accused No. 1 access to the house and doing nothing to prevent him carrying out the murder and so to be guilty as an abettor who was present under Sections 107 and 114 of Penal Code'. Whether and how far the admissions contained in Yeshwada's statement are evidence against her and prove her to have been an abetting party to the murder is a question which I am not called upon to consider now, because her case is not before us at present. The Indian Evidence Act makes a clear distinction between an admission and a confession. It is only under Section 30 of the Act that the confession of one of two or more accused persons, jointly tried for the same offence, can be taken into consideration as against the rest. It must be a confession to be so admissible, that is, it must affect both the person confessing and the other accused. Here the statements of Yes hwada taken by themselves do not fall within that category. As held by the Allahabad High Court in Queen-Empress v. Jagrup 7 A. 646 the word 'confession' as used in the sections of the Evidence Act relating to confessions must not be construed as including a mere inculpatory admission which falls short of being an admission of guilt. Section 30 must be strictly construed. The learned Sessions Judge has construed the statement into a confession by a process of inferential reasoning which is not what the terms of Section 30 countenance. In the statement Yeshwada has tried to exculpate herself and to inculpate the appellant. It may be that by not giving information of the intention to murder, ascribed by her to the appellant and standing as a passive spectator of the murder she has furnished evidence of conduct against herself. But that does not make it a confession, because it is one thing to make statements giving rise to an inference of guilt and another thing to confess a crime.
3. Exhibit 31 must, therefore, be excluded from consideration as against the appellant. What remains, then, as proof of the appellant's guilt is of a very inconclusive character. Three witnesses (Exhibits 5, 6 & 15) depose to having seen the appellant come out of the deceased's house at 3 or 4 in the morning. The learned Sessions Judge has declined to treat these as reliable witnesses and there I agree with him. The next piece of evidence is that of footprints on the flat roof of the house of one Tukarama. These are said to have been compared with those of the appellant and to have tallied. But the evidence on that point is not convincing. The panchnama made as to the footprint mentions two, whereas Baji, the officiating Kulkarni, has given evidence which is conflicting. He first said: 'There were 4 or 5 footprints', but on further questioning he said: There were only 2 footprints and these were in opposite directions. In all there were 6 footprints.'
4. If, as held by the Sessions Judge, the appellant had entered into a previous plot with Yeshwada to kill her husband and the latter had agreed to allow him access to the house, it is difficult to understand why the appellant should have climbed tip the roof of Tukaram's house and thence descended into the compound of the deceased.
5. The rest of the evidence is of a very shadowy character. A rag said to be stained with blood is alleged to have been found on the roof of the deceased's house, but there is no evidence connecting the rag with the appellant. It is alleged that the appellant's shirt and dhotar were stained with blood but the Chemical Analyser's examination shows that no mammalian blood could be detected on them. The fact that two knives and razors were found in the appellant's house proves nothing.
6. I am of opinion that on the ground that there is ho conclusive evidence against the appellant, the conviction and sentence must be reversed and he must be acquitted and discharged.
7. I do not think Ext. 31 is a confession within the meaning of Section 30 of the Indian Evidence Act. If that statement be assumed to be true then the woman Yeshwada neither took part in nor abetted the murder. According to that statement she was present when Santya inflicted on her husband the injuries from which the latter died. But she did not assist Santya or incite him to attack her husband or necessarily know at the time that Santya was killing her husband. She did not even admit Santya to the house. According to her statement Santya opened the door and came in. She did know that Santya had previously said he was determined to kill her husband, but I do not think that in her statement she meant, or that from the other circumstances in the case it can be assumed that she believed, that Santya would really carry out his threat; or believed that by encouraging his coming to see her, she was placing her husband's life in danger. Therefore, I think, that if the statement be true it is entirely consistent with the assumption that the woman did not take part in or abet the murder: in other words, it is not a confession, but an exculpatory statement. If it be only partially true, if it be a statement minimising her share in the affair it is still an exculpatory statement and not a confession.
8. Therefore, in my opinion, it cannot be taken into consideration against Santya. Omitting it, the evidence, as the Sessions Judge points out, does not show conclusively that Santya was concerned in the murder and, therefore, he must be acquitted.