1. [ His Lordship first dealt with the case of Soni and treating her confession as evidence against her confirmed the conviction and sentence passed upon her. The judgment next proceeded to deal with the case of Laxman thus :] The case of accused No. 2 is on a different footing altogether. There is, so far as I can see, practically no corroboration of the story told in the confession of Soni as against Laxman. Two witnesses were called who said that they saw Laxman on the night of January 25 in the neighbourhood of Sakora, but their evidence was not relied on by the Public Prosecutor, and was disbelieved by the learned Sessions Judge. There is no evidence whatever that Laxman wrote this pseudonymous' letter. He is, as are all the parties, illiterate, and somebody must have got the letter written, but we have no evidence whatever to show who it was who got the letter written, or, if it was got written by Laxman, how he managed to get it posted at Manmad, whence it is alleged to have come. The principal corroboration relied upon by the learned Sessions Judge and by the Assistant Government Pleader was the finding of the chopper. There undoubtedly was evidence that the chopper was made for Laxman. One may perhaps assume that, as it was made for Laxman, it still remains his property, although that is not an assumption which necessarily follows logically. But assuming the chopper to be Laxman's, there is nothing whatever to show that Laxman knew that the chopper was at the bottom of this well. There is nothing to show where the chopper was kept by him, how his custody of it came to an end, or howl it got into the well, except the confession of Soni. Apart from the confession of Soni we know nothing whatever about how the chopper got into the well. It seems to me, therefore, that one cannot rely on the finding of that chopper in the well, even assuming it to be Laxman's chopper, as any real corroboration of the story told in the confession as against him. In a case of this sort one cannot shut one's eyes to the possibility of the wife, who is evidently an unscrupulous woman, conspiring with some third party to commit the murder of her husband, whom she wanted out of the way, and to throw the blame on a former lover with whom her intrigue had ceased. There is no evidence that the intrigue continued after Nathu and Soni left Nandgaon some three months before the date of the murder. The whole of the evidence is quite consistent with the murder having been committed by some one, possibly a fresh lover of Soni, and the blame being deliberately thrown on Laxman.
2. We have had a good deal of discussion in this case about the amount of weight which should be attached to the confession of a co-accused, and the way in which such confession should be dealt with. The learned Assistant Government Pleader contends that the confession of a co-accused should be treated on the same basis as the evidence of an accomplice, and for that he relies or certain dicta of Sir Basil Scott in Emperor v. Sabitkhari I.L.R. (1919) Bom. 739 : 21 Bom. L.R. 448 and of Mr. Justice Heaton and Mr. Justice Macleod, as he then was, in Emperor v. Gangappa Kardeppa I.L.R. (1913) Bom. 156 : 15 Bom. L.R. 975 I have no criticism whatever to make on either of those decisions, but I am not altogether in agreement with some of the views expressed by those learned Judges. It seems to me a fallacy to say that the confession of a co-accused can be dealt with on the same basis as the evidence of an accomplice. The ordinary way of dealing with accomplice's evidence is to treat the evidence of an accomplice as the foundation of the prosecution story, and then to see how far there is any corroboration of matters which affect the accused and tend to show that the evidence is true as against him. But, in my opinion, one cannot take the confession of a co-accused as the basis of the prosecution case. The evidence of an accomplice is given on oath, and the witness is subject to cross-examination, and Section 133 of the Indian Evidence Act shows that a conviction based on the uncorroborated evidence of an accomplice is not bad in law, although in practice Courts in this country refuse to convict on such evidence. But the confession of a co-accused is not evidence given on oath in the witness box, and there is not right of cross-examination. It is not evidence at all as defined in Section 3 of the Indian Evidence Act, but Section 30 provides that :
When more persons than one are being, tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
The language of that section is very guarded. It does not say that the confession of a co-accused is to be treated as evidence against any one except the confessing party. All it says is that the confession may be taken into consideration, I think that means merely that it is one relevant fact which the Court has to consider. But in my view the confession is not strictly evidence against a co-accused, and I am clearly of opinion that a conviction based solely on the confession of a co-accused would be bad in law. There are many occasions on which the Court is undoubtedly assisted by taking into consideration the confession of a co-accused. There may be the direct evidence of a single witness which the Court would be more ready to accept if supported by the confession of a co-accused. Or, in a case depending on circumstantial evidence, where the question to be decided is what is the proper inference to be drawn from all the circumstances proved, the confession of the co-accused is one of the circumstances which may help the Court in drawing a correct inference. But I protest against the suggestion that the confession of a co-accused can be treated as the basis of the prosecution case, for which it is only necessary to find some corroboration as against the accused. In the present case, even if one dealt with the evidence on that basis, I am clearly of opinion that there is no real corroboration of the confessional statement of accused No. 1 as against accused No. 2. I think, therefore, that the conviction of accused No. 2 was wrong, and the appeal must be allowed, and the accused acquitted.
4. The first accused Soni is the widow of the deceased Nathu Bhoi, and she and accused No. 2, Laxman Jairam, were jointly tried in connection with the murder of the said Nathu Bhoi, Laxman being charged as principal offender, and Soni as his abettor. At the trial the prosecution relied on the confession of Soni, the co-accused, against Laxman with such corroborative material as was available. The learned Sessions Judge acting upon that confession and certain circumstances which he has indicated in his judgment, but which, as I shall presently point out, do not confirm the identity of the co-prisoner, has convicted Laxman and sentenced him to death. The learned Assistant Government Pleader, in supporting that conviction, has asked us to treat the confession of Soni as the! basis of proof of the offence charged as if it was on the same footing as accomplice testimony. He has relied on the observations of Scott C. J. in Emperor V. Sabitkhan I.L.R. (1919) Bom. 739 : 21 Bom. L.R. 448 to the following effect (p. 767) :-
As regards the confessions of co-accused the Indian Law has no counterpart in England, but it seems to me that for the purpose of admissibility such confessions stand on the same footing as accomplice evidence and that their weight must depend on the circumstances of each case.
Upon first impression it might seem that the distinction which the law makes between the two has been in some respects whittled down in the above judgment. After carefully reading that judgment I am satisfied that there was no intention to suggest that the confession of a co-accused could be made the sole foundation for conviction of the other accused implicated therein. The learned Chief Justice took occasion to guard himself by saying that there was no distinction for the limited purpose of admissibility. That might properly imply that under the Indian Evidence Act just as accomplice testimony is made admissible by Section 133, Section 30 of the same Act renders the confession of a co-accused admissible. Section 30 permits the: Court to take the confession of a co-accused into consideration. That is giving wide discretion to the Court even to exclude that confession altogether from consideration against the co-accused indicated, if it is so disposed. The question then arises under what circumstances would it be proper for the Court to exercise its discretion in taking that confession into consideration? The answer must be given by reference to the broad rule of natural justice and prudence which is usually applied by Courts in India to tainted testimony. My Lord the Chief Justice has just pointed out that accomplice testimony stands altogether on a higher footing than the confession of a co-accused, principally on account of the opportunity of cross-examination afforded to the accused in testing the accomplice's evidence. The Legislature, therefore, has used guarded language in the matter of the use of the confession of a co-accused by not treating it as evidence under Section 3 of the Indian Evidence Act and thus attaching to it a lesser degree of probability. No doubt self-implication is recognisably a guarantee for truth, and it is made a condition precedent to the admissibility of the confession. But it cannot follow that because under certain circumstances the confession of a co-accused might be taken into consideration it should always or invariably be made the basis for a conviction. The current of judicial authority is opposed to that view, and I fail to discover anything in the judgment in Emperor v. Sabitkhan or the judgment of Mr. Justice Macleod, as he then was, in Emperor v. Gangappa Kardeppa I.L.R. (1913) Bom. 156 : 15 Bom. L.R. 975 in support of the conclusion that a matter which may be taken into consideration under Section 30 can form the basis of legal conviction even if there is no evidence other than such matter. Even when the Court is inclined to take the confession into, consideration, according to an unbroken series of decisions of this Court, the uncorroborated confession of a co-accused has not been considered enough to warrant a conviction of the co-prisoner.
5. Upon the record the question we, have to determine is what weight should be given to the confession of the co-accused in view of the other evidence available. The learned Sessions Judge has relied upon the nature of the injuries indicated by the doctor, the discovery of the corpse bound in a gunny bag, and the discovery of blood-stained clothes from the house such as cap and shirt as lending corroboration to the story of Soni in hen confession not only for the purpose of convicting Soni upon her own admission, but connecting the second prisoner Laxman with the crime. It has been well recognised that, proof of corroborative circumstances which establish the crime is not enough for the purpose of convicting the co-prisoner implicated in the confession. There must be other corroborative proof connecting and identifying him in the crime. The discovery of the articles and the nature of the injuries merely confirm the circumstances of the crime. They cannot by any manner of reasoning identify the co-accused as the criminal. The only circumstances to which our attention has been directed as tending to such identification are the discovery of the chopper from a well upon the statement of Soni, and a pseudonymous letter which, it is suggested, has emanated from Laxman, putting the relatives and the police on a wrong scent with regard to the culprit. With regard to the chopper I cannot improve the statement of my Lord the Chief Justice in regard to the absence of cogency in that discovery. Assuming that the chopper was made for Laxman according to the evidence of the smith, it does not necessarily follow that it was used by Laxman for the purpose of this crime. That chopper was admittedly produced from the well upon the statement of Soni, who, on her own showing, had concealed it there. Having regard to Soni's relationship with Laxman it was not difficult for her to obtain it from the latter if she was inclined to use it herself or to hire another person for the purpose. The suggestion that Laxman left the chopper with Soni to) be disposed of by her when everything else was removed by him, does not seem reasonable or proper. In fact the discovery of human blood on the chopper and the probability that it was manufactured for Laxman merely create suspicion against the latter, but they carry the case no further. The discovery of that chopper as well as the production of the latter is not less consistent with the view which has been pressed upon us by the learned advocate for the appellant Laxman that perhaps another person had a hand in this affair. The authorship of that letter is not traced to the accused Laxman. It is important to note that the deceased's nephew Zelia was living with him and his wife at Sakora for nearly two months before his alleged disappearance from that place. If the deceased was murdered in that house, the circumstances indicate that the persons who could have an opportunity to commit that crime would be Soni and Zelia. Zelia has explained that he was away from the house and was at Manmad about that time. As regards that fact there is the word of Zelia alone, and perhaps his conduct in making an attempt to discover where Laxman was is in his favour. There are other circumstances of great importance which cannot be overlooked. According to the panchnama, exhibit 11, one shirt and a vest were found in that house with blood stains on it. Those clothes, according to the evidence of Soni, did not belong to the deceased, and they divert suspicion from Laxman whose clothes they were not. Having regard to Soni's character it is not difficult to conceive upon a supposed change in the object of her affection that she would contrive to rid herself both of her husband and the old paramour. The circumstances strengthen rather than remove that suspicion. Consequently, I am not prepared to regard the discovery of the chopper and the letter as sufficient to confirm the accusation against Laxman by the co-accused Soni. I accordingly agree that the conviction of Laxman must be set aside, and his appeal allowed.
6. With regard to Soni, she stands condemned by her own admission, and there is sufficient corroboration as regards the truth of her complicity in this crime. I would therefore confirm her conviction and sentence and dismiss her appeal.