JUDGMENT Sharma J. - 1. The appellant Faddi was convicted of the offence under S.302 IPC and sentenced to death by the First Addl. Sessions Judge Morena for committing the murder of a boy aged 11 years named Gulab on the 19th of January, 1962 in the jungle adjacent to village Jarah. The case has also come up before us for confirmation of sentence of death. This judgment shall govern both of these cases. 2. The facts of the prosecution case may briefly be stated as follows Faddi had kept the deceased Gulab's mother Jaibai, who was a widow, as his mistress. They both lived for sometime at Agra. Gulab also lived with them at that time. They thereafter shifted their residence to Morena leaving Gulab at Torkheda under the care of one Ramle. It is alleged by the prosecution that Faddi wanted to sell away Jaibai in marriage to someone else and "when Jaibai came to know of this design she ran away to Agra where she stayed with one Shripal. Faddi followed her there. But Jaibai on learning about his visit slipped away to the house of her daughter, Sampat, Faddi being unable to trace the whereabouts of Jaibai at Agra returned from these, Thereafter he along with Banwari went to Ramle's house at Torkheda and falsely represented to him that Gulab's mother Jaibai being seriously ill he had come to take away Gulab. By sheer coincidence one Shyama arrived in the meanwhile with a message from Jaibai that she did not want her son to be sent with anyone. When Sayama conveyed this message' to Ramle, Faddi and Banwari along with Bhagwansingh and Kamla, the son and daughter respectively of Ramle, were sitting in a cart. On hearing the message' brought by Shyama accused Faddi drove away the cart. He sopped it only at the place where Gulab was grazing the cattle. Faddi and Banwari forcibly took away Gulab. On the 20th of January, 1962 Faddi appeared at about 2 A.M. a the police station Saraich-hola and lodged a report (Ex/P 8). In this report Faddi stated that he had been to Agra on 18-1-1962 in search of his wife Jaibai but that he could not contact her. On the 19th he paid a visit to Ramle at Torkheda, and asked him to send away Gulab with him. Ramle, however, refused to do so. In this report Faddi stated that he had been to Agra on 18-1-1962 in search of his wife Jaibai but that he could not contact her. On the 19th he paid a visit to Ramle at Torkheda, and asked him to send away Gulab with him. Ramle, however, refused to do so. He, therefore, forcibly took away the boy at night. He further stated in 'he report that while he was going with the boy he was accused by a cyclist, who tried to stop him. In the meanwhile Ramle and Bhanta came from behind and snatched away the boy from him. They made Gulab take off his "pyjama" and underwear and took him to a well. Faddi stated in the report that he followed them and hid himself in a field nearby. After sometime he heard the sound of something being dropped into the well. He did not, however, stir out due to fear. When he peeped into the well on the next morning he noticed Gulab's dead body floating on the surface of the water inside the well. Faddi thereafter went to Marana where he consulted the legal pactioners and on their advice lodged a report with the police. Investigation was started by two police on the basis of this report. The well in which Gulab's dead body lay was "pointed out by the appellant and the dead body was taken out from the bottom of the well. It was seized under seizure memo Ex. P-5. 3. Remle, Bhanta and Shyama were at first arrested by the police on the basis of the present appellant's report (Ex. P-8.) But it subsequently came to light that Faddi himself had committed the murder .in the presence of Banwati. Faddi was, therefore, arrested on the 27th of January, 1962. 4. Dr. Nigam, who held an autopsy on 22-1-1962 found a depressed fracture of the skull on Gulab's dead body which had, in the opinion of the doctor resulted in coma and ultimately in Gulab's death. The death had, in the opinion of the doctor, occurred 2 or 3 days prior to the 22nd of January, 1962. 5. The accused Faddi took the police to his house at Morena and produced before the panchas an underwear (Art. 1) which was identified by Jaibai as belonging to deceased Gulab. 6. The death had, in the opinion of the doctor, occurred 2 or 3 days prior to the 22nd of January, 1962. 5. The accused Faddi took the police to his house at Morena and produced before the panchas an underwear (Art. 1) which was identified by Jaibai as belonging to deceased Gulab. 6. The present appellant was, along with Banwari prosecuted and tried on the basis of the facts stated above for Gulab's murder. At the conclusion of the trial Banwari was given the benefit of doubt and acquitted; whereas the present appellant was convicted and sentenced as already stated above. 7. The conviction of the accused entirely on circumstantial evidence. I shall take up each circumstance relied on by the prosecution against the accused and then proceed to consider how far the evidence led in support of it establishes it. The next question to be considered would be whether the cumulative, effect of all the circumstances proved against the accused when taken into account along with his explanation in respect of each of the circumstances is such as would exclude all reasonable probability of his innocence. To begin with the prosecution relies on the fact that the accused had gone to the house of Ramle at Torkheda, and that he along with Banwari, forcibly took away the deceased from the jungle where he was grazing the cattle PW 3 Bhagwansingh and P.W. 15-Ramle have stated that the accused had come to Ramle's house and represented that Gulab's mother was 1ying seriously ill and he had on that account come to take away Gulab, who had at that time gone out in the jungle. The appellant and his companion on seeing a bullock-cart standing at Ramle's door seated themselves in it presumably with a view to take it to the jungle, where Gulab was grazing the cattle. Bhagwansingh and Kamla son and daughter of Ramle were also sitting in the cart. Just when they were about to drive it away PW 5 Shayam arrived there. Shyama stated that he had been to Agar where he had stayed at Shripal’s house on 18-1-1962. He had been asked by Shripal to inform Ramle that Gulab's mother was staying with him. The witness was further asked by Shripal to warn Ramle not to send Gulab with anyone. When Shyama gave this message Faddi and his associate Banwari were sitting in the bullock-cart. He had been asked by Shripal to inform Ramle that Gulab's mother was staying with him. The witness was further asked by Shripal to warn Ramle not to send Gulab with anyone. When Shyama gave this message Faddi and his associate Banwari were sitting in the bullock-cart. On hearing this they hurriedly drove away the cart nothing was elicited in the cross-examination of PW 5 Shyama or PW 15 Ramle which could shake their credit. Relying on the evidence of PW 5 Shyamlal, PW 15 Ramle & PW-3 Bhagwansingh, I would hold that the accused had on 19-1-1962 paid a visit to Ramle's house, and had asked Ramle to allow him to take Gulab along with him. The evidence of Bhagwansingh and Ramle goes to show that the accused took away Gulab farcibly. This happened sometime in the afternoon of the 19th of June, 1962. Thereafter Gulab was never seen alive by anyone. On the next night the accused at appeared 9 P.M. at police station Saraichhola and made the report Ex. P/8, as detailed in para 2 avove. It is no doubt true that the accused had immediately after Gulab's murder charged Ramle, Bhanta and Shyama with the commission of the murder But in his statement under S.342 Cr. P. C. the accused denied altogether having raid a visit to Ramle's house and bringing away Gulab with him from Torkhada. After the case had been challenged, it appears that the accused completely abandoned the story regarding Gulab's murder as set up by him in Ex. P/8. I shall deal with that aspect of the matter later For the present the only question to be considered is whether the evidence of Ramle and Shyama can be discarded merely because the accused had at one stage falsely implicated the ill in this case. On the statement made by the accused himself under S.342 Cr. P. C. : the report (Ex. P-8) made by him on 20-1-1962 to the police Saraichhola stands entirely discredited. In the Court of Sessions the accused did not disown having made the report Ex. P-8 all that he contended was that he had made it under the instructions of one Lalalram Thus it would be clear that at the trial the accused himself repudiated the truth of the version as set out in Ex. P-8. In the Court of Sessions the accused did not disown having made the report Ex. P-8 all that he contended was that he had made it under the instructions of one Lalalram Thus it would be clear that at the trial the accused himself repudiated the truth of the version as set out in Ex. P-8. On the question of the admissibility of this report our attention was invited by the learned counsel for the appellant to the following observations made by their Lordships of the Supreme Court in the case of Nisar Ali Vs. State of U.P. AIR 1957 SC 366 : "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 in not a substantive piece of evidence and can only be used to corroborate the statement of the maker under S. 157 of the Evidence Act or to contradict it under S.145 of that Act. It cannot be used as evidence against the matter at the trial, if he himself becomes an accused, nor to corroborate or contradict other witnesses. In this case. therefore, it in not evidence." The aforesaid observations of their Lordships must in my opinion, be lead in the context of the circumstances of the case. As was observed by Jagan Narain, J. in The State of Rajasthan Vs Balchand A.I.R. 1960 RAJ. 101 all that their lordships meant there by was that if Qudratullah had been a witness in the case the first information-report could have been used to corroborate him or to contradict him. But since he was a co-accused the peport could not be used for any purpose Bhandari J. also in The State of Rajasthan Vs. Shivsingh A.I.R. 1962 RAJ. 3 placed a similar interpretation on the aforesaid observation, of their Lordships of the Supreme Court in Nisar Ali-s case (supra). A similar view was also expressed by Oak J. in Allahdia Vs. Stare 1959 ALL. L. J 340. The learned Judge in dealing with an argument similar to the one advanced before usebserved that:" The observation' it cannot he used as evidence against the maker at the trial if he himself becomes an accused is likely to create an impression that, a report made by Allahdia accused can never be used in evidence against him. L. J 340. The learned Judge in dealing with an argument similar to the one advanced before usebserved that:" The observation' it cannot he used as evidence against the maker at the trial if he himself becomes an accused is likely to create an impression that, a report made by Allahdia accused can never be used in evidence against him. But it must be noted that their Lordships, in Nisar Ali's case (supra) were considering the question whether a report made by Qudratullah accused could be utilised against Nisar Ali co-accused. It was held that Qudratullah’s report could not be so used. Those observations have therefore to be understood in context of that case. Their Lordship, had no occasion to consider whether the reoort made by Qudratullah could be used against Qudratullah himself as an admission" 8. On a careful consideration of the case law on the point, I am of the 'opinion that a first information report made by a person who is subsequently accused of an offence, may in certain cases be relevant against the maker as a statement accompanying or explanatory of conduct which is relevant under S.8. Such a statement may also be relevant under the provisions of S. 27 of the Evidence Act. That the conduct of an accused person can be proved against him would be clear from illustration (e) to S.8. of the Evidence Act. The fact that at a time when no one knew about Gulab's murder the accused appeared at 9 p. m. at the police station at Saraichhola, and gave an account of the circumstances and them manner in which the boy had been done to death. His conduct in appearing at the police station and complaining to a person in authority about Gulabs murder by certain specified persons would certainly be evidence against him under S.8 of the Evidence Act. 9. To begin with so much portion of the first-information-report made by a person who is subsequently accused of an offence as amounts to a confession has to be excluded from consideration in view of the provisions of S.25 of the Evidence Act. In doing so it must be remembered that a confession must as was laid down by their Lordships of the Privy Council in Pakala Narayana Swami Vs. In doing so it must be remembered that a confession must as was laid down by their Lordships of the Privy Council in Pakala Narayana Swami Vs. Emperor, AIR 1939 P.C. 47), be Either a plenary admission of guilt or at least substantially of all the circumstances necessary to constitute the offence. An admission of even a gravely incriminating fact is not itself a confession. Section 162 Cr. P. C. can have no application to the report Ex p-8 in this case in as much as that section applies only to statements made by 'any person' to a police officer in the course of an investigation under Chapter XIV of the Code of Criminal Procedure. No investigation had been commenced by the police in this case till the accused's report had been recorded. It was in fact on the basis of this report that investigation into the charge of Gulab's murder was started by the police. 10. To sum up the law on this point it may be observed' that statements contained in the first information-report lodged by a person who is subsequently accused of an offence, which do not amount to a confession but are mere admission would be relevant under S.21 of the Evidence Act. Such statements may also be relevant under S.8 of the Evidence Act as accompanying or explanatory of conduct which is relevant. It was held in R.V. Rafiquddin (ILR 62 Cal. 572) & Garu Chand'a Vs. Emperor, (AIR 1932 Bom. 286) that production of articles by accused is relevant as evidence of conduct and statements accompanying and explanatory of such conduct are also admissible under S. 8 as part of the conduct. In Babulal Vs. Emperor (AIR 1946 Nag. 120) the conduct of an accused in disclosing places where the weapons of assault on the deceased were concealed, was held to be relevant under S.8 of the Evidence Act. 11. The accused knew very well that since he had removed Gulab from. Ramle's custody he would be called upon by his mother either to produce the boy or to account for his disappearance. The only manner in which the accused could extricate himself from such a position was by suggesting that he had been deprived of the custody of Gulab by someone else at a later stage of the journey. Ramle's custody he would be called upon by his mother either to produce the boy or to account for his disappearance. The only manner in which the accused could extricate himself from such a position was by suggesting that he had been deprived of the custody of Gulab by someone else at a later stage of the journey. I am, distinctly, of the opinion that the accused deliberately made an attempt in his report Ex. P-8 falsely to suggest that Ramle, Bhanta and one more person had snatched away the boy from him and had thereafter dropped him into a well. I say that this suggestion was false for the simple reason that it is inherently improbable. If the boy had been snatched away from the accused, there could be no point in the accused keeping himself under concealment for the whole night at a short distance from Ramle and his associates. The accused would at once have proceeded from the spot to make a report about Ramle', act in forcibly taking away the boy from his custody. Even after the accused heard the sound of something being dropped into the well, he tells us in his report Ex. P-8 that he remained where he was for the whole night out of fear. Surely he could have slipped a way without being noticed and it is difficult to believe that Ramle and his associates kept vigil for the whole night at the well after the boy had been dropped into it. On the next morning Faddi peeped into the well and he claims to have seen the dead body of Gulab floating on the surface of the water. We have it in the testimony of Dr. O. P. Nigam that in such 'a case the body would come to the surface of water about two days after its being drowned. Faddi could not, therefore, have Seen the dead body floating on the surface of the water on the next morning, when less than 18 hours had elapsed after the murder. Faddi's conduct after his alleged discovery is altogether inconsistent with the ordinary course of human conduct. He did not raise a hue and cry. Faddi could not, therefore, have Seen the dead body floating on the surface of the water on the next morning, when less than 18 hours had elapsed after the murder. Faddi's conduct after his alleged discovery is altogether inconsistent with the ordinary course of human conduct. He did not raise a hue and cry. He quietly went to Morena and sought advice from several persons including a legal advisor before lodging a report about the gruesome murder of a boy who 'had been snatched away from his hands by persons who were known to him from before. What was there for Faddi to require so much contemplation about before he could lodge a report about the incident if it had taken place in the manner suggested by him. There is yet another point which would easily strike anyone namely that neither Ramle nor Bhanta or Shyama could have any motive for killing the unfortunate boy, while the accused had strong reason to do so. The facts that Jaibai used to live with him and had subsequently abandoned him and gone to Agra were not disputed by the accused himself. P.W. 7-Raghubar, in whose house Faddi lived with Jaibai at Morena, has deposed that they used to quarrel with each other frequently and that eventually Jaibai slipped away to some other place. Thereafter the accused borrowed Some money from Raghubar's wife saying that he had to go to Agra. P. W. 14-Shripal has deposed that Jaibai arrived at his place on the 17th of January, 1962, On the same night Faddi came to his place and on hearing Faddi' s voice Jaibai made good her escape from Shri, pal's place. None of these, facts were disputed by the accused in his statement under S.342 Cr. P. C. It is, therefore, proved beyond doubt that Faddi had prior to his visit to Torkheda made an unsuccessful attempt to contact Jaibai at Agra. It was in this frustrated state of mind that the accused went to Torkheda and falsely represented to Ramle that Gulab's mother was lying seriously ill and that he, therefore, wanted to take him away, Jaibai having left Faddi he could hardly have much affection for Jaibai's son from a former husband. Why was he then so keen to take away the boy and that too on a false pretext. Why was he then so keen to take away the boy and that too on a false pretext. The question could admit of only one answer and it is that he wanted to keep the boy with him in order to use him as means compelling his mother to return to him. The -appearance of Shyama on the spot, however, appears to have given all entirely different turn to the events in this case. In the presence of the accused Shyama told Ramle that Jaibai did not want her son to be sent with anyone. We have it from the testimony of Ramle and Bhagwansingh that the accused thereafter forcibly took away Gulab from he jungle. He knew that the mother would claim the boy as soon as she received news about Faddi taking him away by force. 12. When viewed in this context there could be no doubt whatever that Ramle, Dhanta and Shyama could have no reason to murder Gulab and if they had in fact snatched away Gulab from the hands of the accused as was suggested by him in his report Ex. P-8, they would have immediately returned with the boy to Torkheda instead of making a halt for the night in the jungle. The person who lodged the report Ex. P-8 was admittedly present at the time of the murder. There is nothing on the record of this case which would even remotely lend support to the version contained in Ex. P-8 The only other alternative is that Faddi himself murdered the boy and in order to create circumstances favourable to himself longed the report Ex. P-8 falsely charging certain otter persons with the commission of the crime. Even apart from this report we have it from the evidence of P.W. 20 Shri Rajendrasingh SIP that it was the accused who took him to the well in which the dead body of Gulab was lying. The conduct of the accused in pointing out the well in which the dead body of Gulab lay is relevant under S. 8 of the Evidence Act. The accused now denies having brought away the boy from Torkheda or to have been present at the time of hi, murder. He thus leaves unexplained how he came to know before everyone else that Gulab's dead body was lying in a certain well in the jungle. The accused now denies having brought away the boy from Torkheda or to have been present at the time of hi, murder. He thus leaves unexplained how he came to know before everyone else that Gulab's dead body was lying in a certain well in the jungle. Obviously the person who knew it had either witnessed the murder or himself committed it or had seen the dead body floating on the surface of the water. The dead body was not floating even at the time when the police reached the spot. The evidence of Rajendrasingh on this point receives support from the testimony of P.W. 16-Bharatsingh and P.W. 19-Loharesingh. Therefore, there could be no possibility of anyone who was not present at the time of the murder to see the dead body floating on the surface of the water at any time prior to its being taken out of the well. 13. I have already discussed above that Ramle, Bhanta and Shyama could have no motive to commit the crime and that the conduct of the accused both prior and subsequent to the murder is consistent only with the hypothesis of his guilt. P.W. 13-Jabai, P.W. 10 Jimipal and P.W. 12-Sampatjai have deposed that the accused stealthily entered into Sampatbai's house at night. Even leaving aside the extra-judicial confession alleged to have been made by Faddi in the presence of these persons his conduct in pursuing Jaibai after the boy had been done away with and stealthily effecting his entry into Sampatbai's house goes to show the extent to which he was obsessed with the desire to some how compel Jaibai to return to him. It therefore stands to reason that he killed the son in order to avenge himself on the mother. 14. The circumstances discussed by me above do not leave any room for reasonable doubt regarding the guilt of the accused. The murder was committed in cold-blood out of sheer vengeance against Mt. Jaibai. The act of the accused in taking away the life of an innocent boy for the supposed wrongs of his mother is so reprehensible in nature as to deserve the extreme, penalty provided by law for the offence of murder. 15. The result is that Faddi's appeal has no force, and is hereby dismissed. The reference made by the learned Addl. 15. The result is that Faddi's appeal has no force, and is hereby dismissed. The reference made by the learned Addl. Sessions Judge is accepted and the sentence of death passed by him is hereby confirmed. 16. I agree.