minal 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
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 section 302 IPC 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 pm that day
It is noted on the postmortem report that it had been despatched from the place of occurrence at 1 pm 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 pm 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 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
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
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
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 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 reliance is placed on the case reported as Nisar Ali vs State of UP 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 section 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 section 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 11957 SCR 657 319 c d and e to section 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 section 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 vs King Emperor1 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 case1 Kapur J who spoke for the Court said after narrating the facts An objection has been taken to the 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 section 157 Evidence Act or to contradict it under section 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 section 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 vs Balchand2 and 1 1957SCR657
2 AIR 1960 Raj 101 321 in State of Rajasthan vs Shiv Singh1 and by the Allahabad High Court in Allahdia vs State2
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


Summary:
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 AIR 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
HeldThere 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 section 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 section 21 of the Evidence admission of an accused can be proved against him
Dal singh vs King Emperor L R 44 IA 137 applied
Nisar Ali vs State of UP  considered and distinguished
State vs Balachand AIR 1960 Raj 101 State of Rajasthan V shiv Singh AIR 1962 Raj 3 and Allohdia vs State 1959 All
LJ 340 referred to