Judgement

KAPUR J. - The appellant along with one Qudrat ullah was tried for the murder of one Sabir. The latter was tried under S. 302 read with S. 114, penal Code, for abetment, and the former under S. 302, Penal Code. Both the accused were acquitted by the learned Sessions Judge of Bareilly. But the State took an appeal to the Allahabad High Court against the appellant only and the judgment of acquittal in his case was reversed and he was convicted under S. 302, Penal Code and sentenced to transportation for life . Against the Judgment of the High Court the appellant has brought this appeal by Special Leave.

2. The facts which have given rise to the appeal are Sabir was murdered on 11-5-1951 at about 6.30 p.m. The first information report was made by Qudrat Ullah the other accused at 6.45 p.m. the same day, i.e., within about 15 minutes of, the occurrence. The persecution case was that them was on exchange of abuses between the deceased and the appellant near the shop of the first informant, Qudrat Ullah. The cause of the quarrel was that on the evening of the occurrence while Qudrat Ullah was sitting on his shop and the deceased was sitting just below the shop, the appellant, come out of his house and on seeing him, the deceased asked him as to why he was in such a "dishevelled condition", which annoyed the appellant and gave rise to an exchange of abuses. On hearing this noise, the prosecution witnesses arrived at the spot and raw the appellant and the deceased grappling with each other. The appellant is stated to have asked Qudrat Ullah to hand over a knife to him which Qudrat Ullah did; this knife is Ex. II . with which the appellant stabbed the deceased and then fled away. As a result of the injuries the deceased fell down in front of Qudrat Ullah s shop; some witnesses have stated that he fall on the wooden plank in front of the shop. Qudrat Ullah picked up the knife which had been dropped by the appellant, put the deceased in a rickshaw and took him to the hospital from where he went to the police station and made the first information report. An objection has been taken to the admissibilty 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 the 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.

3. The Sub-Inspector went to the spot, started investigation and a arrested the appellant the same evening at his house. The post-mortem examination of the deceased showed injuries on the person of the deceased and, according to the doctor, death was due to shock and haemorrhage on account of the punctured wound in the chest, causing injuries to the lungs and these injuries could be caused with a sharp- edged weapon.

4. The appellant and the deceased both belong to a sect of Jogis. Evidence discloses that the deceased and the appellant were quite friendly with each other, and so were the deceased and Qudrat Ullah, who is a butcher and had a shop which is a part of his house. Adjacent to the shop is the house of the appellant. Eye witnesses of the occurrence were Yad Ali, P. W, 1, Banne, P.W. 2 and Mohd. Ahmed, P.W. 3. Having been told by the sister of the deceased as to the occurrence, Ashraf, P.W. 4 came to the spot later and found the deceased lying unconscious. Shakir, P. W. 5, younger brother of the deceased, on arriving near the shop of Qudrat Ullah heard the appellant and the deceased exchanging abuses, but was not a witness of the assault as just at that time he had gone, at the request of Qudrat Ullah, to fill his Chillum for the hooka and when he came back he found the deceased lying unconscious and the appellant running away towards his house.

5. The evidence of Yad Ali, P.