Decided on January 11,1967

STATE Respondents


SEN J. - (1.) THIS judgment will govern two appeals, Criminal Appeals Nos. 376 of 65 and 377 of 1965, as they arise out of the same judgment.
(2.) ORIGINALLY seven persons including the two appellants Fattiya and Awalsingh were prosecuted for offence under section 302, Indian Penal Code for committing murder of one Jawaniya, on 16-1-1965 at village Mehni. There were also other charges against all the accused persons under sections 149 and 148, Indian Penal Code. After trial only the two appellants Fattiya and Awalsingh have been convicted under section 302 read with section 34, Indian Penal Code and sentenced to rigorous imprisonment for life. The prosecution story is very simple. On 16-1-1965, the deceased Jawaniya climbed a Tada tree which was standing in the field of one Bhimsingh. This was a disputed tree but that is not very material for the purpose of this case. All the accused persons assembled under that tree. Both the appellants were armed with axes, bows and arrows. The other five persons had bows and arrows. All of them discharged arrows at Jawaniya which did not strike him. Then Fattiya and Awalsingh started cutting the tree with their axes. Jawaniya shouted for help. His wife Ditali P.W. 4, son Kalsingh P.W. 5 and Pemsingh P.W. 6 and Kamla P.W. 7 came there when the accused persons stretched their bows and arrows towards them and so they could not help. Then the Tada tree fell down owing to the cut. Jawaniya received injuries on account of the fall. The accused then assaulted him with the weapons they had. Jawaniya died on the spot. After giving blows Fattiya made a report at the Police Station Sorwa. It was recorded by Fatesingh head-constable. Atter investigation seven accused persons were prosecuted for the offences already mentioned out of which Fattiya and Awalsingh have been convicted and sentenced as stated above. They have now filed these appeals. The prosecution has sought to prove the case against the appellants on the basis of the evidence of the eye-witnesses, supported by the first information report and the medical evidence. The defence of the appellants is that they did not cut the tree; it was already cut and it fell on account of the gust of the wind. This defence has not been accepted.
(3.) THE first contention is that the first information report Exh.P/2 given by the accused Fattiya is not admissible in evidence as it contains a confessional statement made to the Police. We think there is substance in this contention. THE first information report clearly mentions that Fattiya and other accused started cutting Tada; Jawaniya did not get down. THEy therefore cut the tree which fell down along with Jawaniya. His two legs were broken. Injuries were caused on his temporal region and he died immediately. As this information is included in the report, the first information report is definitely inadmissible as it is a confession made to the Police. Faddi v. State (1964 MPLJ 609 SC) is a decision of the Supreme Court in which it has been observed:- "The first information report made to the Police by a person who is subsequently made an accused in respect of the offence reported by him is admissible in evidence and can be used against him at the trial if the statement does not amount to a confession." Similar view has also been expressed in Aghnoo v. State (1966 MPLJ 49 SC=AIR 1966 SC 119). In the instant case it is clear that the first information report made by Fattiya amounts to a confession and therefore Exh. P/2, the report has to be excluded from consideration.;

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