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PETITIONER: FADDI

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 24/01/1964

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR HIDAYATULLAH, M.

CITATION:  1964 AIR 1850            1964 SCR  (6) 312  CITATOR INFO :  R          1966 SC 119  (10)  D          1968 SC1281  (10)  R          1972 SC  66  (12)

ACT: First   Information  Report  by  accused--Admissibility   in Evidence--Indian  Evidence  Act, 1872 (1 of  1872)  ss.  21, 25--Code of Criminal Procedure, 1898 (V of 1898), s. 162.

HEADNOTE: On the first information report lodged by the appellant, the corpse  of his step-son was recovered.  The police  arrested three  other persons indicated to be the culprits, but as  a result of the investigation, the appellant  (1) A.I.R. 1961 Orissa, 131.                             313 was sent up for trial for the murder and sentenced to death. The  High Court confirmed the conviction and  sentence.   On appeal  by  special leave it was contended  that  the  first information  report was inadmissible in evidence and  should not have been, therefore, taken on the record. Held:There  was no force in the contention.  The report  was neither confession of the accused nor a statement made to  a police officer during the course of investigation.   Section 25  of the Evidence Act and s. 162 of the Code  of  Criminal Procedure  do not bar its admissibility.  The report was  an admission  by  the  accused of certain  facts  which  had  a bearing on the question to be determined by the Court  viz., how  and  by whom the murder was committed  or  whether  the accused’s  statement  in court denying  the  correctness  of certain statements of the prosecution witnesses was  correct or  not.  Admissions ire admissible in evidence under s.  21 of  the  Evidence          admission of an  accused  can  be proved against him. Dal singh  v. King Emperor, L. R. 44 I.A. 137, applied. Nisar Ali v. State of U.P. [1957] S.C.R. 657, considered and distinguished. State v. Balachand A.I.R. 1960 Raj. 101, State of  Rajasthan V. shiv Singh A.I.R. 1962 Raj. 3 and Allohdia v. State, 1959 All.  L.J. 340, referred to.

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 210  of 1963. Appeal  by special leave from the judgment and  order  dated July  27,  1963, of the Madhya Pradesh High  Court  (Gwalior Bench)  in  Criminal  Appeal No. 83  of  1963  and  Criminal Reference No. 4 of 1963. K.   K. Luthra, for the appellant. I.   N. Shroff, for the respondent. January  24, 1964.  The Judgment of the Court was  delivered by. RAGHUBAR  DAYAL J.-Faddi appeals, by special leave,  against the order of the High Court of Madhya Pradesh confirming his conviction and sentence of death under s. 302 I.P.C. by  the Additional Sessions Judge, Morena. Jaibai,  widow  of Buddhu, began to live with  Faddi  a  few years  after  the death of her husband  Buddhu.   Faddi  and Jaibai at first lived at Agra, but later on shifted to 314 Morena.  Jaibai had a son named Gulab, by Buddhu.  Gulab was aged 11 years and lived in village Torkheda at the house  of his phupa Ramle.  He was living there from Sawan, 1961. Gulab’s  corpse was -recovered from a well of village  Jarah on  January 21, 1963.  It reached the mortuary at Morena  at 5-15  p.m. that day.  It is noted on the  postmortem  report that it had been despatched from the place of occurrence  at 1  p.m.  Dr. Nigam, on examination, found an injury  on  the skull  ’and has expressed the opinion that the boy  died  on account  of  that  injury within two or three  days  of  the postmortem  examination.  He stated in Court that  no  water was  found  inside either the lungs or the  abdomen  or  the larynx or in the middle ear.  This rules out the possibility of Gulab’s dying due to drowning. As  a  result of the investigation, the  appellant  and  one Banwari were sent up for trial for the murder of Gulab.   It is  interesting to observe the course of the  investigation. The  police  knew  nothing of the offence  till  9  p.m.  on January  20,  1963, when the appellant himself went  to  the police station, Saroichhola, and lodged a first  information report  stating therein that on peeping into the  well  near the  peepul  tree of Hadpai on the morning  of  January  20, 1962, he found his son lying dead in the well.  Earlier,  he had narrated the events leading to his observing the  corpse and  that narration of facts accused Ramle, Bhanta  and  one cyclist  of the offence of murdering the boy Gulab.  It  was this  information which took the police to the well  and  to the recovery of the corpse. The  police  arrested the persons indicated to be  the  cul- prits, viz., Ramle, Bhanta and the cyclist, who was found to be  Shyama,  by January 26.  These persons remained  in  the lock-up  for 8 to 11 days.  In the meantime, on January  26, the  investigation was taken over, under the orders  of  the Superintendent  of  Police, by the Circle  Inspector,  Nazat Mohd.  Khan from Rajender Singh, who was the Station Officer of  Police  Station,  Saraichhola.   The  Circle   Inspector arrested  Faddi  on January 27.  He other  arrested  persons were got released in due course.  Faddi took the  Circle                             3I5 Inspector  to  the  house and, after taking out  a  pair  of shorts  of  Gulab, delivered them to the  Circle  Inspector. Ramle,  Bhanta alias Dhanta and Shyamlal have been  examined as prosecution witnesses Nos. 15, 4 and 5 respectively. The  conviction of the appellant is based on  circumstantial evidence, ’there being no direct evidence about his actually

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murdering  Gulab  by  throwing  him  into  the  well  or  by murdering him first and then throwing the dead body into the well.   The circumstances which were accepted by  the  trial Court were these:               1.    Faddi  went  to the house  of  Ramle  at               about  noon  on 19th January, 1962  and  asked               Ramle to send the boy with him.  Gulab was  at               the  time in the fields.  After  meals,  Faddi               left  suddenly when Shyama arrived and gave  a               message to Ramle from Gulab’s mother that  the               boy  be not sent with any one.   Faddi  caught               hold  of  Gulab from the fields  forcibly  and               took him away.  It may be mentioned here  that               one  Banwari  who has been acquitted  is  also               said to have been with Faddi at this time.               2.    Gulab had not been seen alive subsequent               to               Faddi’s  taking him away on the  afternoon  of               January, 19.  His corpse was recovered on  the               forenoon  of January, 21.  Faddi had not  been               able  to give any satisfactory explanation  as               to how he and Gulab parted company.               3.    Faddi  knew  the  place  where   Gulab’s               corpse lay.               It was his information to the Police which led               them  to  recover the corpse.   His  statement               that  he had noted the corpse floating on  the               morning of January 20 was untrue, as according               to the opinion of Dr. Nigam, the corpse  could               come  up and float in the water  approximately               after two days.  The witnesses of the recovery               deposed  that  they could not see  the  corpse               floating  and that it had to be  recovered  by               the use of angles.               316               4.    The  accused’s confession to Jaibai  and               two other witnesses for the prosecution  viz.,               Jimipal and Sampatti about his killing Gulab.               5.    The pair of shorts recovered was the one               which  Gulab  was wearing at the time  he  was               taken away by Faddi. The  High  Court did not rely on the confession and  on  the recovery of the pair of shorts from the appellant’s  posses- sion, and we think, rightly.  The evidence about the confes- sion  is  discrepant and unconvincing.  Bhagwan0  Singh  and Ramle  deposed  that the deceased was wearing  the  pair  of shorts  recovered, at the time the appellant took him  away. Bhagwan  Singh did not go to the test  identification.   The accused was not questioned about the deceased wearing  these pair  of  shorts  -at the time he was taken  away  from  the village. The High Court considered the other circumstances sufficient to establish that the appellant had committed the murder  of Gulab.  It therefore confirmed the conviction and sentence. Learned  counsel for the appellant has taken us through  the entire evidence and commented on it.  He has contended  that the evidence is unreliable and should not have been accepted by the Courts below.  We have considered hi,,, criticism and are  of  opinion  that  the  Courts  below  have   correctly appreciated  the  evidence.  It is not necessary for  us  to discuss it over again. It  may be mentioned now that the. appellant  denies  having gone to Ramle’s house in village Torkheda and to have  taken away  Gulab from that village forcibly on the  afternoon  of January  19,  but  admits his lodging the  report,  and  the

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recovery of the dead body from the well with the help of the angle.   He however states that he had lodged the report  on the  tutoring of one Lalla Ram of Utampur.  Ile hag  neither stated why he was so tutored nor led any evidence in support of his allegation.  In his report the appellant admitted the prosecution allegations up to the stage of                             317 his  forcibly taking away Gulab from village  Torkheda.   He then  stated that Ramle, Bhatta and the third person,  viz., Shyamlal  threatened him with life, took out the pyjama  and half-pant  from  the body of Gulab and taking the  boy  with them  remained sitting on the well near the peepul  tree  of Hadpai.   The  appellant kept himself concealed  from  their view, nearby.  He heard the sound of something being  thrown into  the well.  Those three persons then ran away,  but  he himself  remained  sitting there throughout  the  night  and then,  on peeping into the well next morning,  observed  the corpse  of  his son in the well,, He then  went  to  Morena, consulted  one Jabar Singh Vakil, and one Chhotey Singh  and was  advised  to lodge the report.   He  definitely  accused Ramle, Bhatta and the cycle-rider with killing his son Gulab by throwing him into the well. This  report is not a confessional statement of  the  appel- lant.  He states nothing which would go to show that he  was the murderer of the boy.  It is the usual first  information report  an aggrieved person or someone on his behalf  lodges against  the alleged murderers.  The learned Sessions  Judge and the High Court considered the appellant’s statements  in this report which went to explain his separation from  Gulab on  account of the conduct of Ramle and others and  came  to the  conclusion that those statements were false.  This  was in  a  way justified as the burden lay on the  appellant  to account for the disappearance of Gulab when the  prosecution evidence showed that the appellant had taken Gulab with him. Besides, what the appellant had stated in the report, he had given  no explanation for the disappearance.  Of course,  he had denied that he took Gulab with him.  The evidence  about that aspect of the case consists of the statement of  Ramle, Shyamlal  and Bhagwan Singh which have been accepted by  the Courts below. The  High Court also took into consideration the  fact  that the  appellant knew where the deceased’s body was as it  was on what he had stated in the report that the police went  to the well of village Jarah -and recovered the dead body.  The accused  gave no explanation in Court as to how he  came  to know  about it.  What he had stated in the report  had  been considered and found to be untrue and 318 specially  in view of the appellant’s own conduct.   It  has been rightly stressed that if Gulab had been forcibly  taken away from him by Ramle and others, the appellant  ordinarily would  have  gone and taken some action  about  it,  without wasting his time in just following those people.  Even if he felt interested in following them and had heard the sound of something  being  thrown inside the well and had  also  seen those  persons  running  away, he had no  reason  to  remain hidden at that spot the whole night. He should have informed people  of  what he had observed as he must  have  suspected that these persons had played mischief with Gulab. The  High  Court  also  took  into  consideration  the   in- correctness  of the appellant’s statement that  he  observed the dead body floating in the well on the morning of January 20.  It  is  contended  for the  appellant  that  the  first information  report was inadmissible in evidence and  should not  have been therefore taken on the record.   In  support,

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reliance  is  placed on the case reported as  Nisar  Ali  v. State  of U.P. (1).  We have considered this contention  and do not see any force in it. The report is not a confession of the appellant.  It is  not a  statement made to a police officer during the  course  of investigation.  Section 25 of the Evidence Act and s. 162 of the Code of Criminal Procedure do not bar its admissibility. The  report is an admission by the accused of certain  facts which have a bearing on the question to be determined by the Court,  viz.,  how  and  by whom the  murder  of  Gulab  was committed,  or  whether the appellant’s statement  in  Court denying  the  correctness  of  certain  statements  of   the prosecution  witnesses  is correct or not.   Admissions  are admissible  in evidence under s. 21 of the Act.  Section  17 defines an admission to be a statement, oral or documentary, which  suggests  any inference as to any fact  in  issue  or relevant fact, and which is made by any of the persons,  and under  the circumstances, thereafter mentioned, in the  Act. Section 21 provides that admissions are relevant and may  be proved as against a person who makes them.  Illustrations (1)[1957] S.C.R. 657. 319 (c), (d) and (e) to s. 21 are of the circumstances in  which an  accused could prove his own admissions which go  in  his favour  in view of the exceptions mentioned in s. 21 to  the provision that admissions could not be proved by the  person who makes them.  It is therefore clear that admissions of an accused can be proved against him. The  Privy Council in very similar circumstances, held  long ago  in Dal Singh v. King Emperor(1) such first  information reports  to be admissible in evidence.  It was said in  that case at p. 142:               "It is important to compare the story told  by               Dal  Singh  when making his statement  at  the               trial with what he said in the report he  made               to the police in the document which he signed,               a     document    which    is     sufficiently               authenticated.    The   report   is    clearly               admissible.  It was in no sense a  confession.               As  appears from its terms, it was  rather  in               the  nature of an information or  charge  laid               against  Mohan  and Jhunni in respect  of  the               assault alleged to have been made on Dal Singh               on his way from Hardua to Jubbulpore.  As such               the  statement  is  proper  evidence   against               him.......               It will be observed that this statement is  at               several points at complete variance with  what               Dal  Singh  afterwards stated in  Court.   The               Sessions   Judge  regarded  the  document   as               discrediting  his defence.  He had  to  decide               between the story for the prosecution and that               told for Dal Singh." Learned counsel for the appellant submits that the facts  of that  case  were distinguishable in some respects  from  the facts  of  this case.  Such a distinction, if  any,  has  no bearing on the question of the admissibility of the  report. The  report  was  held  admissible  because  it  was  not  a confession  and  it was helpful in  determining  the  matter before the Court. (1)  L. R. 44 1. A. 137. 320 In  Nisar  Ali’s case(1) Kapur J. who spoke  for  the  Court said, after narrating the facts:               "An   objection   has  been   taken   to   the

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             admissibility of this report as it was made by               a  person  who  was  a  co-accused.   A  first               information report is not a substantive  piece               of   evidence   and  can  only  be   used   to               corroborate  the statement of the maker  under               s.  157,  Evidence Act, or  to  contradict  it               under  s. 145 of that Act.  It cannot be  used               as evidence against the maker at the trial  if               he   himself  becomes  an  accused,   nor   to               corroborate or contradict other witnesses.  In               this case, therefore, it is not evidence." It  is on these observations that it has been contended  for the appellant that his report was inadmissible in  evidence. Ostensibly,  the expression ’it cannot be used  as  evidence the  maker  at  the  trial if  he  himself  becomes  accused supports  the appellant’s contention.  But it appears to  us that in the context in which the observation is made and  in the circumstances, which we have verified from the record of that  case, that the Sessions Judge had definitely held  the first  information report lodged by the co-accused  who  was acquitted to be inadmissible against Nisar Ali, and that the High Court did not refer to it at all in its. judgment, this observation  really  refers to a  first  information  report which is in the nature of a confession by the maker thereof. of course, a confessional first information report cannot be used against the maker when he be an accused and necessarily cannot  be  used against a co-accused.   Further,  the  last sentence of the above-quoted observation is significant  and indicates  what  the  Court meant was  that  the  first  in- formation report lodged by Qudratullah, the co-accused,  was not  evidence against Nisar Ali.  This Court did not  meanas it  had not to determine in that case-that a first  informa- tion  report which is not a confession cannot be used as  an admission  under s. 21 of the Evidence Act or as a  relevant statement  under any other provision of that Act.   We  find also  that this observation has been understood in this  way by the Rajasthan High Court in State v. Balchand(2) and (1) [1957]S.C.R.657. (2) A.I.R. 1960 Raj 101                             321 in State of Rajasthan v. Shiv Singh(1) and by the  Allahabad High Court in Allahdia v. State(2). We therefore hold that the objection to the admissibility of the first information report lodged by the appellant is  not sound and that the Courts below have rightly admitted it  in evidence and have made proper use of it. The  circumstances  held established by the High  Court  are sufficient,  in  our opinion, to reach the  conclusion  that Gulab was murdered by the appellant who was the last  person in  whose company the deceased was seen alive and  who  knew where  the  dead body lay and who  gave  untrue  explanation about his knowing it in the report lodged by him and gave no explanation  in  Court  as  to how  he  separated  from  the deceased. We therefore dismiss the appeal. Appeal dismissed.