Raghubar Dayal, J.
1. Faddi appeals, by special leave, against the order of the High Court ofMadhya Pradesh confirming his conviction and sentence of death under s. 302I.P.C. by the Additional Sessions Judge, Morena.
2. Jaibai, widow of Buddhu, began to live with Faddi a few years after thedeath of her husband Buddhu. Faddi and Jaibai at first lived at Agra, but lateron shifted to Morena. Jaibai had a son named Gulab, by Buddhu. Gulab was aged11 years and lived in village Torkheda at the house of his phupa Ramle. He wasliving there from Sawan, 1961.
3. 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 onthe post-mortem report that it had been despatched from the place of occurrenceat 1 P.M. Dr. Nigam, on examination, found an injury on the skull and hasexpressed the opinion that the boy died on account of that injury within two orthree days of the post-mortem examination. He stated in Court that no water wasfound inside either the lungs or the abdomen or the larynx or in the middleear. This rules out the possibility of Gulab's dying due to drowning.
4. As a result of the investigation, the appellant and one Banwari were sentup for trial for the murder of Gulab. It is interesting to observe the courseof the investigation. The police knew nothing of the offence till 9 P.M. onJanuary 20, 1963, when the appellant himself went to the police station,Saroichhola, and lodged a first information report stating therein that onpeeping into the well near the peepul tree of Hadpai on the morning of January20, 1962, he found his son lying dead in the well. Earlier, he had narrated theevents leading to his observing the corpse and that narration of facts accusedRamle, Bhanta and one cyclist of the offence of murdering the boy Gulab. It wasthis information which took the police to the well and to the recovery of thecorpse.
5. The police arrested the persons indicated to be the culprits, viz.,Ramle, Bhanta and the cyclist, who was found to be Shyama, by January 26. Thesepersons remained in the lock-up for 8 to 11 days. In the meantime, on January26, the investigation was taken over, under the orders of the Superintendent ofPolice, by the Circle Inspector, Nazal Mohd. Khan from Rajender Singh, who wasthe Station Officer of Police Station, Saraichhola. The Circle Inspectorarrested Faddi on January 27. The other arrested persons were got released indue course. Faddi took the Circle Inspector to the house and, after taking outa pair of shorts of Gulab, delivered them to the Circle Inspector. Ramle,Bhatta alias Dhanta and Shyamlal have been examined as prosecution witnessesNos. 15, 4 and 5 respectively.
6. The conviction of the appellant is based on circumstantial evidence,there being no direct evidence about his actually murdering Gulab by throwinghim into the well or by murdering him first and then throwing the dead bodyinto the well. The circumstances which were accepted by the trial Court werethese :
1. Faddi went to the house ofRamle at about noon on 19th January, 1962 and asked Ramle to send the boy withhim. Gulab was at the time in the fields. After meals, Faddi left suddenly whenShyama arrived and gave a message to Ramle from Gulab's mother that the boy benot sent with any one. Faddi caught hold of Gulab from the fields forcibly andtook him away. It may be mentioned here that one Banwari who has been acquittedis also said to have been with Faddi at this time.
2. Gulab had not been seen alivesubsequent to Faddi's taking him away on the afternoon of January, 19. Hiscorpse was recovered on the forenoon of January, 21. Faddi had not been able togive any satisfactory explanation as to how he and Gulab parted company.
3. Faddi knew the place whereGulab's corpse lay. It was his information to the Police which led them torecover the corpse. His statement that he had noted the corpse floating on themorning of January 20 was untrue, as according to the opinion of Dr. Nigam, thecorpse could come up and float in the water approximately after two days. Thewitnesses of the recovery deposed that they could not see the corpse floatingand that it had to be recovered by the use of angles.
4. The accused's confession toJaibai and two other witnesses for the prosecution viz., Jimipal and Sampattiabout his killing Gulab.
5. The pair of shorts recoveredwas the one which Gulab was wearing at the time he was taken away by Faddi.
7. The High Court did not rely on the confession and on the recovery of thepair of shorts from the appellant's possession, and we think, rightly. Theevidence about the confession is discrepant and unconvincing. Bhagwan Singh andRamle deposed that the deceased was wearing the pair of shorts recovered, atthe 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 shortsat the time he was taken away from the village.
8. The High Court considered the other circumstances sufficient to establishthat the appellant had committed the murder of Gulab. If therefore confirmedthe conviction and sentence.
9. Learned counsel for the appellant has taken us through the entireevidence 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 hiscriticism and are of opinion that the Courts below have correctly appreciatedthe evidence. It is not necessary for us to discuss it over again.
10. It may be mentioned now that the appellant denies having gone to Ramle'shouse in village Torkheda and to have taken away Gulab from that villageforcibly on the afternoon of January 19, but admits his lodging the report, andthe recovery of the dead body from the well with the help of the angle. Hehowever states that he had lodged the report on the tutoring of one Lalla Ramof Utampur. He has neither stated why he was so tutored nor led any evidence insupport of his allegation. In his report the appellant admitted the prosecutionallegations up to the stage of his forcibly taking away Gulab from villageTorkheda. He then stated that Ramle, Bhanta and the third person, viz.,Shyamlal threatened him with life, took out the pyjama and half-pant from thebody of Gulab and taking the boy with them remained sitting on the well nearthe peepul tree of Hadpai. The appellant kept himself concealed from theirview, nearby. He heard the sound of something being thrown into the well. Thosethree persons then ran away, but he himself remained sitting there throughoutthe night and then, on peeping into the well next morning, observed the corpseof 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 definitelyaccused Ramle, Bhatta and the cycle-rider with killing his son Gulab bythrowing him into the well.
11. This report is not a confessional statement of the appellant. He statesnothing which would go to show that he was the murderer of the boy. It is theusual first information report an aggrieved person or someone on his behalflodges against the alleged murderers. The learned Sessions Judge and the HighCourt considered the appellant's statements in this report which went toexplain his separation from Gulab on account of the conduct of Ramle and othersand came to the conclusion that those statements were false. This was in a wayjustified as the burden lay on the appellant to account for the disappearanceof Gulab when the prosecution evidence showed that the appellant had takenGulab with him. Besides, what the appellant had stated in the report, he hadgiven no explanation for the disappearance. Of course, he had denied that hetook Gulab with him. The evidence about that aspect of the case consists of thestatement of Ramle, Shyamlal and Bhagwan Singh which have been accepted by theCourts below.
12. The High Court also took into consideration the fact that the appellantknew where the deceased's body was as it was on what he had stated in thereport that the police went to the well of village Jarah and recovered the deadbody. The accused gave no explanation in Court as to haw he came to know aboutit. What he had stated in the report had been considered and found to be untrueand specially in view of the appellant's own conduct. It has been rightlystressed that if Gulab had been forcibly taken away from him by Ramle andothers, the appellant ordinarily would have gone and taken some action aboutit, without wasting his time in just following those people. Even if he feltinterested in following them and had heard the sound of something being throwninside the well and had also seen those persons running away, he had no reasonto remain hidden at that spot the whole night. He should have informed peopleof what he had observed as he must have suspected that these persons had playedmischief with Gulab.
13. The High Court also took into consideration the incorrectness of theappellant's statement that he observed the dead body floating in the well onthe morning of January 20. It is contended for the appellant that the firstinformation report was inadmissible in evidence and should not have beentherefore taken on the record. In support, reliance is placed on the casereported as Nisar Ali v. State of U.P. : 1957CriLJ550 . We have consideredthis contention and do not see any force in it.
14. The report is not a confession of the appellant. It is not a statementmade to a police officer during the course of investigation. Section 25 of theEvidence Act and s. 162 of the Code of Criminal Procedure do not bar itsadmissibility. The report is an admission by the accused of certain facts whichhave a bearing on the question to be determined by the Court, viz., how and bywhom the murder of Gulab was committed, or whether the appellant's statement inCourt denying the correctness of certain statements of the prosecutionwitnesses is correct of not. Admissions are admissible in evidence under s. 21of the Act. Section 17 defines an admission to be a statement, oral ordocumentary, which suggests any inference as to any fact in issue or relevantfact, and which is made by any of the persons, and under the circumstances,thereafter mentioned, in the Act. Section 21 provides that admissions arerelevant 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 couldprove his own admissions which go in his favour in view of the exceptionsmentioned in s. 21 to the provision that admissions could not be proved by theperson who makes them. It is therefore clear that admissions of an accused canbe proved against him.
15. The Privy Council in very similar circumstances, held long ago in DalSingh v. King Emperor L.R. 44 IndAp 137 such first information reports to beadmissible in evidence. It was said in that case at p. 142 :
'It is important to comparethe story told by Dal Singh when making his statement at the trial with what hesaid in the report he made to the police in the document which he signed, adocument which is sufficiently authenticated. The report is clearly admissible.It was in no sense a confession. As appears from its terms, it was rather inthe nature of an information of charge laid against Mohan and Jhunni in respectof the assault alleged to have been made on Dal Singh on his way from Hardua toJubbulpore. As such the statement is proper evidence against him........
It will be observed that thisstatement is at several points at complete variance with what Dal Singhafterwards stated in Court. The Sessions Judge regarded the document asdiscrediting his defence. He had to decide between the story for theprosecution and that told for Dal Singh.'
16. Learned counsel for the appellant submits that the facts of that casewere distinguishable in some respects from the facts of this case. Such adistinction, if any, has no bearing on the question of the admissibility of thereport. The report was held admissible because it was not a confession and itwas helpful in determining the matter before the Court.
17. In Nisar Ali's case : 1957CriLJ550 Kapur J. who spoke for the Courtsaid, after narrating the facts :
'An objection has been taken to the admissibilityof this report as it was made by a person who was a co-accused. A firstinformation report is not a substantive piece of evidence and can only be usedto corroborate the statement of the maker under s. 157, Evidence Act, or tocontradict it under s. 145 of that Act. It can not be used as evidence againstthe maker at the trial if he himself becomes an accused, nor to corroborate orcontradict other witnesses. In this case, therefore, it is not evidence.'
18. It is on these observations that it has been contended for the appellantthat his report was inadmissible in evidence. Ostensibly, the expression 'itcannot be used as evidence against the maker at the trial if he himself becomesan accused supports the appellant's contention. But it appears to us that inthe context in which the observation is made and in the circumstances, which wehave verified from the record or that case, that the Sessions Judge had definitelyheld the first information report lodged by the co-accused who was acquitted tobe inadmissible against Nisar Ali, and that the High Court did not refer to itat all in its judgment, this observation really refers to a first informationreport 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 whenhe be an accused and necessarily cannot be used against a co-accused. Further,the last sentence of the above-quoted observation is significant and indicateswhat the Court meant was that the first information report lodged byQudratullah, the co-accused, was not evidence against Nisar Ali. This Court didnot mean - as it had not to determine in that case - that a first informationreport which is not a confession cannot be used as an admission under s. 21 ofthe Evidence Act or as a relevant statement under any other provision of thatAct. We fine also that this observation has been understood in this way by theRajasthan High Court in State v. Balchand and in Stateof Rajasthan v. Shiv Singh and by the Allahabad High Courtin Allahdia v. State 1959 All. L.J. 340.
19. We therefore hold that the objection to the admissibility of the firstinformation report lodged by the appellant is not sound and that the Courtsbelow have rightly admitted it in evidence and have made proper use of it.
20. The circumstances held established by the high Court are sufficient, inour opinion, to reach the conclusion that Gulab was murdered by the appellantwho was the last person in whose company the deceased was seen alive and whoknew where the dead body lay and who gave untrue explanation about his knowingit in the report lodged by him and gave no explanation in Court as to how heseparated from the deceased.
21. We therefore dismiss the appeal.
22. Appeal Dismissed.