Faddi Vs. The State of Madhya Pradesh
[1964] INSC 13 (24 January 1964)
24/01/1964 DAYAL, RAGHUBAR 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.
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
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 anyone.
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 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 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
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.
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