SUPREME COURT REPORTS (1g64J

1964 of the provisions of the Act; and Art. 31 (2) deals with Jt4nt RaJn.aprova compulsory acquisition or requisition which also is entirely

1!v• inapplicable to the present Act.

What the Act has pur-

S1a11 of Ori"a ported to do is to authorise the levy of assessment in res-

Goillldraiadkar J. pct of lands which till then had been exempted from the said levy, and as Art. 31{5)(b)(i) provides nothing contain ed in clause (2) shall affect the provisions of any Jaw which the State may make for the purpose of imposing or levying. any tax or penalty. If the Orissa Legislature has imposed a tax in the form of the assessment of the private lands of Rulers, clearly it has not purported either to deprive the Rulers of their property, or to acquire or requisition the said property; it is a simple measure authorising the levy of a tax in respect of agricultural lands and as &uch, it i~ entireiy outside 'the purview of Art. 31.

It appears that in Pratap Kessari Deo v. The State of Orissa & Ors., ( 1 ) the validity of the Act was challenged before the Orissa High Court, and the said High Court has repelled the challenge and upheld the validity of the Act.

In our opinion, the view taken by the Orissa High Court is right.

January, U

The result is. the petitions fail and are dismissed with costs.

One set of hearing fees.

Petition dismissed.

FADDI

l'.

THE STATE OF MADHYA PRADESH

(M. HIDAYATULLAH AND RAGHUBAR DAYAL JJ.)

First lnformatinn Report by accused--Admi.sibility in Evide11c~-lndia•

Evidenc~ Act. 1872 (1of1872) ss. '.!l, 25-Code of Cri1ninal Pro; tdu'" 1898 (V of 1898), r. 162.

On the first information report lodged by th~ appellant, the corpse of his step-son was recovered. The police arrested three oth .... ner<; ons indicated to be the culprits, but as a result of the investigatio11. Lbe arpellant

(') A. I. R. 1961 Orissa, 13!.

FaJdi

"'

was &ent up for trial for the murder and sentenced to death. Th¢ High Court confirmed the C" f!viction and sentence. On appeal by special leave it was contended that the first information report was inadmissible in evi~

dence nd should not have been, therefore, taken on the reord.

State of Mtulh7'>·

Held: There v, as no force in the contention. The report was neit'~\.r confession of the accused nor a statement made to a police officer during the ..:ourse 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 facrs which had a bearir.b on the question to be determined by the Court viz., how and by whom the murJcr was committeJ, or whether the accuser.l's statement in court denv

ing the correctness of certain statements of the prosecution witnesses was

corrct or not. 1\dn1!ssions are admissib!e in cvitlence under s. 21 of the Evidence Act and admission of an accused can be proved against him.

Dal S£ngli v. King Emperor, L. R. 44 I.A. 137, applied.

Ni.mr Ali v. Stai. of U.P. [1957] S.C.R. 657, considered and distingui~.hi:J.

State v. Balach.ind /\ l.R. 1960 Raj. Io'l. State of R, ajasthan v.

Shiv Singh A.LR. 1962 Raj. 3 and.Allohdia.v. State, 1959 All. LJ. 340.

referred to.

CRIMINAL APPELLATE JURlSUICT!ON: 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 ; ind 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.

Pra<hlh

_RAGHUIJAR DAYAL. J.-'.addi appals. by special leave, Raghubar Dayal I; aga1mt the order of tne High Court of Madhya Pradesh confirming bis conviction i.lnd sentence of death under s. 302 I.P .C. by the Additional Se1sions J uclge, Morena.

Jaibai, widow of Buddhu, began to Jive with Faddi 8 few years after the death of her husband Buddhu.

Faddi and Jaibai 81 first lived 8! Agra, but later on shifted to

1964 Morena.

Jaibai had a son named Guiab, by Buddhu.

Faddi Guiab was aged 11 years and lived in village Torkheda at

• 1v.M dh the house of his phupa Ramie. He was living there from ... tale o a ya Pradesh Sawan, 1961.

Raehubar Dayal J.

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 1he boy died on account of that injury within two or three days of the post-mortem ex.1mination.

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 Guiab.

It is interesting to observe the course of the inve,1tigation. 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 informatio~ rep01t stating therein that on peeping into the well near the reepul tree of Hadpai on the morning of January 20, 196'.l, he found hi> son lying dead in the well.

Earlier, he had narrated the events leading to his observing the corpse and th.'lt narration of facts accused Ramie, Bhanta and one cyclist of the offence of murdering the boy Guiab.

It wai 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 culprits, viz., Ramie, 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, Nazai Mohd. Khan from Rajender Singh, who was the Station Officer of Police Station, Saraichhola. The Cirde Inspector arrested Faddi on January 27.

The other arrested persons -were got released in due course.

Faddi took the Circle

Inspector to the house and, after taking out .a pair of shorts 1964 of Guiab, de!i;.:red them to the Circle Inspector.

Ramie, Faddi Bhanta alias Dhanta and Shyamlal have been examined as s 1•M dh . .

N 15 5 . t•t• o a ya prosecul!on witnesses os. , 4 and respectively.

Pradesh

. . • Rathubar Dayal 1.

TI1e conviction of the appellant 1s based on circumstantial evidence, there being no direct evidence about his actually murdering Guiab by throwing him into the well or by murdering him first and then th owing the dead body into the well.

The circumstances which were accepted by the tril Court were these:

!. Faddi went to the house of Ramie at about noon on 19th January, 1962 and asked Ramle to send the boy with him.

Guiab 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 th at the boy be not sent with any one.

Faddi caught hold of Guiab 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. Guiab 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 Guiab parted company.

3. Faddi knew the pl.ace 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 morn

ing 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 tlle

use of angles.

1'64

Pot/di ...

Slat• of Madlrya

Pradull

R aghubar Dayal I

4. The accused's confession to J aibai and two other witnesses for the prosecution viz., Jimipal anel Sampatti about his killing Guiab.

5. The pair of shorts recovered was the one which

Guiab was wearing at the time he was taken away by Faddi.

The High Court did not rely on the confession and 011 the recovery of the pair of shorts from the appellant's possession, and we think, rightly. The evidence about the confession is discrepant and unconvincing.

Bhagwan Singh and Ramie 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 circumstance~

ufficient to establish that the appellant had committed the murder of Gu!Jb. It therefore confirmed the conviction and sentence.

Learned counsel for the ; ippellant 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 h~ criticism and are of opinion that the Courts below have correctly ap; ireciated the evidence.

It is not necessary for us to discuss it over again.

It may be mentioneu now that the appellant denies having gone to Ramie's house in village Torkheda and to have taken away Guiab 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. He bas 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 stago of

his forcibly taking away Guiab from village Tork:heda. He 1'64 then stated that Ramie, Bhatta and the third person, viz., FaAdi Shyamlal threatened him with life, took out the pyjama and •. half-pant froin the body of Gui.ab and taking the boy with State p~:f,, ad/rya them remained sitting on the well near the peepul tree of - Hadpai.

The appellant kept himself concealed from their Rafl:iubar Dayal J. view, .nearby. He heard the sound of something being thrown into the well.

Those three persom then ran away, but he himself remained sitting there lthroughout 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

R.mle, Bhatta and the cycle-rider with killing his son Guiab by throwing him into the well.

This report is not a confessional statement of the appellant.

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 stte ments in this report which went to explain his separation from Guiab on account of the conduct of Ramie 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 Guiab when the prosecution evidence showed that the appellant had taken Guiab 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 Guiab with him.

The evidence about that aspect of the case conists of the statement of Ramie, 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

1964 . specially in view of the appellant's own conduct.

It has Fa:.d• been rightly _stressed that if Gu!ab had been forcibly taken State of Madhya away from him by Ramie and others, the appellant ordinari-

Ph ly would have gone and taken some action about it, without Raghubar Dayal J. wasting his time it1 just following those people.

Even if he felt interested in following them and had ha,,! th~ sound of something being thrown inside the well nd had also seen th:1se p.ersons running a\V~!y, he h~1d no rc:l-on to re!11:.1in hidden at that spot the whole night.

He should have informed people of wh.:t he hJd obsrnd as he must have suspected that these pcrso'1S had played mischief with Guiab.

The High Court also took into consideratioa the incorrectness of the appellant's statement that he observed the dead body floating in the well on the morning ot Januc; ry

20. It is contended for the appellant that the first information report was inadmissible in evidence and should not have

men therefore tJken on the record.

Jn support, reliance is placed on the case reported as Nisar Ali v. State of U.P.(').

We have considered this comention 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 Procdure 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 or Guiab 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 rel"> vant 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.'

(c), (d) and (e) to s. 21 are of the circumstances in which 1964 an accused could prove his own admissions which go in his Faddi

favor in v 1 iew odf h~ exceptio 1 dns mentionedcdinbs. h21 to the State ol°Madhya provision t 1at a m1ss10ns cou not be prov y t e person Prade1h who makes them. It is therefoe clear th.at admissions of R h b-D al 1 . aguar ay . an accused can be proved agamst him.

The Privy Council in very similar circumstances, held long ago in Dal Singh v. King Empero1 (') such first information reports to be admissible in evidence.

It was said in that case at p. 1142:

I I/ "It is imprtant to compare the story told by Dal

Singh when making his statemnt 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 w:is rather in the nature of an infoimation 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."

Leamed 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.

(') L. R. 44 I. A. 137.

Faddi

•• litm~ of Madhya

Pl'rllksh

4tqlou6ar Dayal I.

In Nis(Jr Ali's case(') 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 s. 157, Evidence Act, or to contradict it under s. 145 of that Act. It cannot be used as evidence against '!he maker at the trial if he himself becomes an accused, n0r 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 against the maker at the trial if he himself becomes an 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 inform.ation 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 information 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 information reoort 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 unden:tood in this way by the Rajasthan High Court in State v. Balclzand(') and

<1; (19~7:s.c.R.657.

(1) A.I.R. 1960 Raj 101.

in State of Ra; asthan v. Shiv Singh(') and by the Allaha- . bad High Court in A/lahdia v. State( 2 ).

1!164

Faddi

We therefore hold that the objection to the admissibility 51• 1• P~!d::f1h1• of , the first information report lodged by the appellant is not - sound and that the Courts below have rightly admitted it in Raghubar Day-11. 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 Guiab 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 di.rmi1sed.

BALMUKAND

KAMLA WA TI & ORS.

(K. SUBBA RAo AND J. R. MuDHOLKAR JJ.)

Contract by manager to sell joint property-Specific Performance when

nrdered-Hindu Law-Joint family.

The appellant entered into a contract with the karta for the purchase of property belonging to a joint Hindu family.

This property consisted of a fractional share belonging to the family in a large plot of land.

Earnest 1noney was paid to the karta.

As the karta did not execute the sale deed the appellant instituted a suit for specific performance. The other members who are the brothers of the k:arta and who were adults

(') A.I.R. 1962 Raj 3.

134-159 S.C.-21 (') 1959 All. L.J. 340.

Januaryt 21,