FADDI versus THE STATE OF MADHYA PRADESH

_RAGHUIJAR DAYAL. J.-'.addi app~als. by special leave, 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.

p. 313

Jaibai, widow of Buddhu, began to Jive with Faddi few years after the death of her husband Buddhu. Faddi and Jaibai 81 first lived 8! Agra, but later on shifted to Morena. Jaibai had a son named Guiab, by Buddhu. Guiab was aged 11 years and lived in village Torkheda at the house of his phupa Ramie. He was living there from Sawan, 1961.

pp. 313–314

Gulab's corpse was recovered from a well of village Jarah on January 21, 1963. It reached the mortuary at Morena at 5-15 that day. It is noted on the postmortem report that .it had been despatched from the place of occurrence at 1 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.

p. 314

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 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.

p. 314

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 of Guiab, de!i;.:red them to the Circle Inspector. Ramie, Bhanta alias Dhanta and Shyamlal have been examined as s

pp. 314–315

. . N . prosecul!on witnesses os. 15 , 4 and 5 respectively.

p. 315

. . • Rathubar Dayal

p. 315, margin A

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 tri~l Court were these:

p. 315, margin A

!. 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

p. 315, margin A

have been with Faddi at this time.

p. 315, margin A

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

p. 315, margin A

how he and Guiab parted company.

p. 315, margin A

3. Faddi knew the pl.ace where Gulab's corpse lay.

p. 315, margin A

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.

p. 315, margin A

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

p. 316

Sampatti about his killing Guiab.

p. 316

5. The pair of shorts recovered was the one which Guiab was wearing at the time he was taken

p. 316

away by Faddi.

p. 316

The High Court did not rely on the confession and 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.

p. 316

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.

p. 316

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.

p. 316

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 then stated that Ramie, Bhatta and the third person, viz., Shyamlal threatened him with life, took out the pyjama and half-pant froin the body of Gui.ab 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 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.

pp. 316–317

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 st~te­ 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 con- ~ists of the statement of Ramie, Shyamlal and Bhagwan Singh which have been accepted by the Courts below.

p. 317

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 specially in view of the appellant's own conduct. It has been rightly _stressed that if Gu!ab had been forcibly taken away from him by Ramie and others, the appellant ordinarily would have gone and taken some action about it, without wasting his time just following those people. Even if he felt interested in following them and had h~a,,! 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 hidden at that spot the whole night. He should have informed people of wh.:t he hJd obs~rnd as he must have suspected that these pcrso'1S had played mischief with Guiab.

pp. 317–318

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.

p. 318

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 (c), (d) and (e) to s. 21 are of the circumstances in which an accused could prove his own admissions which go in his favo~r in view ~h~ exceptiodns mentionedcdinbs. to the provision t 11at a m1ss10ns cou 1 not be prov y t e person who makes them. It is therefo~e clear th.at admissions of an accused can be proved agamst him.

pp. 318–319

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. 142:

p. 319

I I/ "It is imp~rtant to compare the story told by Dal Singh when making his statem~nt 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

p. 319

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

p. 319

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.

p. 319

In Nis(Jr Ali's case(') Kapur J. who spoke for the Court said, after narrating the facts:

p. 320

"'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.

p. 320

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 < (19~7:s.c.R.657. in State of Ra;asthan v. Shiv Singh(') and by the Allaha- . bad High Court in A/lahdia v. State(

pp. 320–321

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.

p. 321

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.

p. 321

We therefore dismiss the appeal.

p. 321

Appeal di.rmi1sed. BALMUKAND

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v.

p. 321

KAMLA WA TI & ORS. (K. SUBBA RAo J. R. MuDHOLKAR JJ.)

p. 321

Law-Joint

p. 321

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

p. 321

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

p. 321