Full Judgment Text
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PETITIONER:
THULIA KALI
Vs.
RESPONDENT:
THE STATE OF TAMIL NADU
DATE OF JUDGMENT25/02/1972
BENCH:
KHANNA, HANS RAJ
BENCH:
KHANNA, HANS RAJ
MITTER, G.K.
CITATION:
1973 AIR 501 1972 SCR (3) 622
1972 SCC (3) 393
CITATOR INFO :
D 1983 SC1081 (18)
ACT:
Criminal Trial--First Information Report--Unexplained delay
in the lodging of First information Report--Inference.
Constitution of India, 1950--Article 136--Interference--if
evidence afflicted with ex--facie infirmity,.
HEADNOTE:
This Court does not normally reappraise evidence in an
appeal under article 136 of the Constitution but that fact
would not prevent interference with an order of conviction,
if, on consideration of the vital prosecution evidence in
the case the Court finds it to be afflicted with ex-facie
infirmity.
The appellant was sentenced to death under s. 302 Indian
Penal Code. The trial Court and the High Court based the
conviction of the appellant primarily upon the testimony of
two witnesses one of whom according to the prosecution case
was present when the accused made murderous assault on the
deceased and the other arrived soon after. Neither of them
nor anyone else who was told about the occurrence by the two
witnesses made any report at the police station for more
than 20 hours after the occurrence even though the police
station was only two miles from the place of occurrence.
Setting aside the conviction,
HELD : That the delay in lodging the report would raise
considerable doubt regarding the varacity of the evidence of
two witnesses and point to an infirmity in that evidence and
would render it unsafe to base the conviction of the
apPellant.
The first information report in a criminal case is an
extremely vital and valuable piece of evidence for the
purpose of corroborating the oral evidence adduced a’ the
trial The object of insisting upon prompt lodging of the
report to the police in respect of commission of an offence
is to obtain early information regarding the circumstances
in which the crime was committed, the names of the actual
culprits and the part played by them as well as, the names
of eye witnesses present at there scene of occurrence.
Delay in lodging the first information report quite often
results in embellishment which is a Creature of after
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thought. It is therefore essential that the delay in
lodging the report should be satisfactorily explained. [626
H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 165 of
1971.
Appeal by special leave from the _judgment and order dated
November 24, 1970 of the Madras High Court in Criminal
Appeal No. 761 of 1970 and Referred Trial No. 50, of 1970.
S. Lakshminarasu, for the appellant.
A. V. Rangam, for the respondent.
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The Judgment of the Court was delivered by
Khanna, J. Thulia Kali (26) was convicted by Sessions Judge
Salem under section 302 Indian Penal Code for causing the
death of Madhandi Pidariammal (40) and under section 379
Indian Penal Code for committing theft of the ornaments of
Madhandi deceased. The accused was sentenced to death on
the former count. No separate sentence was awarded for the
offence under section 379 Indian Penal Code. The High Court
of Madras affirmed the conviction and. sentence of the
accused. The accused has now come up in appeal to, this
Court by special leave.
The prosecution case was that Madhandi deceased purchased
land measuring 1 acre 62 cents from Thooliya Thiruman (PW
5), elder brother of the accused for rupees one, thousand.
The land of the accused adjoined the land sold to Madhandi
deceased. The accused wanted Madhandi deceased to sell that
land to him but the deceased declined to do so. Madhandi
constructed a fence around the land purchased by her, as a
result of which the passage to the land of the accused was
obstructed. About a week before the present occurrence, the
accused removed some jack fruits from the land purchased by
the deceased. Complaint about that was made by the deceased
to the Panchayatdars. The Panchayatdars considered the
matter, but the accused declined to abide by the decision of
the Panchyatdars.
On March 12, 1970 at about 12 noon, it is stated, Madhandi
deceased left her house situated in village Sakkarapatti
along with her daughter-in-law Kopia Chinthamani (PW 2),
aged 10, for Valaparathi at a distance of about two miles
from the village for grazing cattle. Shortly thereafter,
Valanjiaraju (PW 1), stepson of Madhandi deceased, also
went to Valaparathi and started cutting plants at a distance
of about 250 feet from the place where the deceased was
grazing the cattle. At about 2 p.m. the accused came to the
place where Madhandi deceased was present and asked her
whether she would give him the right of passage or not. The
deceased replied in the negative. The accused then took out
knife Ex. 1 and gave a number of knife blows, to the
deceased in spite of her entreaties to the accused not to
stab her and that she would give him what he wanted. Kopia
PW raised alarm and ran from the place of occurrence. She
met Valanjiaraju PW and told him that the accused was giving
knife blows to Madhandi. Accompanied by Kopia, Valanjiaraju
then went towards the accused but he threatened them with
knife. Valanjiaraju and Kopia thereupon went to the village
and informed the husband of the deceased as well as a number
of other villagers including Aneeba (PW 3) and Selvaraj (PW
4). Valanjiaraju and a large
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number of other villagers then went to the place of
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occurrence A and found the dead body of Madhandi deceased
lying there with injuries on her throat, face and other
parts of the body. Both her ears were found to have been
chopped off. Her jewels had been removed.
According further to the prosecution, Valanjiaraju went to B
the house of village munsif Muthuswami (PW 8) to inform him
about the occurrence. Muthuswami, however, was-away from
the house to another village in connection with some
collection work. Muthuswami returned at about 10.30 p.m.
and was told by Valanjiaraju about the occurrence.
Muthuswami did not record the statement of Valanjiaraju at
that time and told him that be would not go to the spot
where the dead body was lying on that night as wild animals
would be roaming there and that he would go there on the
following morning’ Muthuswami went to the spot where the
dead body of the deceased was lying at about 8.30 a.m. on
the following day, that is, March 13, 1970 and had a look at
the dead body of the deceased. Statement P. I of
Valanjiaraju was recorded by Muthuswami at 9. a.m. at the
spot. The statement was then sent by Muthuswami to police
station Valavanthi at a distance of about two miles from the
place of occurrence. Formal first information report P. 15
on the basis of statement P. I was prepared at the police
station at 11.45 a.m.
Head Constable Rajamanickam after recording first informa-
tion report, went to the place of occurrence and reached
there at 2.30 p.m. Inspector Rajagopal (PW 13), on hearing
about the occurrence at the bus stand, also went to the
place of occurrence. Inquest report relating to the dead
body of the deceased was then prepared. Dr. Sajid Pasha (PW
7) was thereafter sent for from Sendamangalam. Dr. Pasha
arrived at the place of occurrence at 12.30 p.m. on March
14, 1970 and performed post mortem examination on the dead
body of Madhandi deceased.
Inspector Rajagopal arrested the accused, according to the
prosecution, at 5 a.m. on March 15, 1970 in a reserve forest
about one mile from Seppangulam. The accused then stated
that he had kept ornaments and knife in the house of
Chakravarthi (PW 9) and would get the same recovered. The
Inspector then went with accused to the house of
Chakravarthi PW and from there recovered knife Ex. 1 and
ornaments Exs. 2 to 8. The said ornaments belonged to
Madhandi deceased. The knife was taken into possession and
put into a, sealed parcel. The clothes which the accused
was wearing were got removed and put into a sealed parcel.
The parcels were sent to Chemical Examiner, whose report
showed that neither the knife nor the clothes of the accused
were stained with blood.
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At the trial the plea of the accused was denial
simpliciter.According to the accused, the villagers came to
know on the evening of March 12, 1470 that the deceased had
been murdered. The accused along with the villagers went to
the spot where the dead body of the deceased was lying and
stayed with them there during the night. On the following
day, the accused was suspected by the villagers. They gave
him beating and tied him to; A tree. Later on that day,
that is, March 13, 1970, the accused was taken to the police
station and kept there for two days. The accused denied
having committed the murder of the deceased or having got
recovered the ornaments and the knife. No evidence was
produced in defence.
The learned Sessions Judge in convicting the accused relied
upon the evidence of Kopia (PW 2), who had given eye witness
account of the occurrence, as well as the statement of
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Valanjiaraju (PW 1), who had been threatened by the accused
with knife near the place of occurrence. Reliance was also
placed upon the recovery of knife and ornaments in pursuance
of the statement of the accused. The High Court agreed
with the Sessions Judge and affirmed the conviction of the
accused.There can be no doubt that Madhandi deceased was the
victim of a ’brutal attack. Dr. Sajid Pasha, who performed
post mortem examination on the dead body of Madhandi, found
as many as 29 injuries on the body. Out of them, 24 were
incised wounds and five were multiple abrasions. There were
a number of incised wounds on the face, neck, chest and
abdomen. The pinnas of the right and left ears had been
completely severed.Injuries were also found in the eyes and
laryngeal region. Death was the result of different
injuries, some of which were individually sufficient to
cause death. The case of the prosecution was that it was
the accused-appellant who had caused the injuries
to,Madhandi deceased. The accused has, however, denied this
allegation and has claimed that he has been falsely involved
in this case on suspicion.
The trial court and the High Court have based the conviction
of the accused-appellant, as stated earlier, primarily upon
the testimony of Kopia (PW 2) and Valanjiaraju (PW 1). This
Court does not normally reappraise evidence in an appeal
under article 136 of the Constitution, but that fact would
not prevent interference with an order of conviction if on
consideration of the vital prosecution evidence in the case,
this Court finds it to be afflicted with ex facie infirmity.
There are in’ the present case certain broad features of the
prosecution story which create considerable doubt regarding
the veracity of the aforesaid evidence, and. in our opinion,
it would not be safe to maintain the conviction
626
on the basis of that evidence. According to Kopia (PW
2), .the accused stabbed the deceased at about 2 p.m. Kopia
raised alarm and immediately informed Valanjiaraju, who was
cutting plants at a distance of about 250 feet from the
place of occurrence. Valanjiaraju and Kopia then, came
towards the place where the accused had assaulted the
deceased, but the accused threatened them with knife.
Valanjiaraju and Kopia thereupon went to the village abadi
and informed the other villagers. Valanjiaraju accompanied
by other villagers then went to the place of occurrence and
found the dead body of Madhandi lying there with a number of
injuries.
According to document P. I Valanjiaraju made
statement .about the occurrence to village munsif Muthuswami
(PW 8) at about 9 a.m. on March 13, 1970. Formal first
information report on the basis of the above statement was
prepared at the police station at 11.45 a.m. The delay in
lodging the report, according to the prosecution, was due
to the fact that Muthuswami PW was away to another village
in connection with some collection work and he returned to
his house at 10. 30 p.m. Muthuswami told Valanjiaraju when
the latter met him at night that he would record the
satement only after having a look at the dead body on the
following morning.
It is in the evidence of Valanjiaraju that the house of
Muthuswami is at a distance of three furlongs from the
village of Valanjiaraju. Police station Valavanthi is also
at a distance of three furlongs from the house of
Muthuswami. Assuming that Muthuswami PW was not found at
his house till 10.30 p.m. on March 12, 1970 by Valanjiaraju,
it is, not clear as to why no report was lodged by
Valanjiaraju at the police station. It is, in our opinion,
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most difficult to believe that even though the accused had
been seen at 2 p.m. committing the murder of Madhandi
deceased and a large number of villagers had been told about
it soon thereafter, no report about the occurrence could be
lodged till the following day. The police station was less
than two miles from the village of Valanjiaraju and Kopia
and their failure to make a report to the police till the
following day would tend to show that none of them had
witnessed the occurrence. It seems likely, as has been
stated on behalf of the accused, that the villagers came, to
know of the death of Madhandi deceased on the evening of
March 12, 1970. They did not then know about the actual
assailant of the deceased, and on the following day, their
suspicion fell on the accused and accordingly they involved
him in this case. First information report in a criminal
case is an extremely vital and valuable piece of evidence
for the purpose of corroborating the oral evidence adduced
at the trial. The importance of the above report can hardly
be overestimated from the
627
standpoint of the accused: The object of insisting upon
prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information
regarding the circumstances in which the crime was
committed, the names of the actual culprits and the part
played by them as well as names of eye witnesses present at
the scene of occurrence. Delay in lodging the first in-
formation report quite often results in embellishment which
is a creature of afterthought. On account of delay, the
report not only gets bereft of the advantage of spontaneity,
danger creeps in of the introduction of coloured version,
exaggerated account or concocted story As a result of
deliberation and consultation. It is, therefore, essential
that the delay in the lodging of the first information
report should be satisfactorily explained. In the present
case, Kopia, daughter-in-law of Madhandi deceased, according
to the prosecution case, was present when the accused made
murderous assault on the deceased. Valanjiaraju, stepson of
the deceased, is also alleged to have arrived near the scene
of occurrence on being told by Kopia. Neither of them, nor
any other villager, who is stated to have been told about
the occurrence by Valanjiaraju and Kopia, made any report at
the police station for more than 20 hours after the
occurrence, even though the police station is only two miles
from the place of occurrence. The said circumstance, in our
opinion, would raise considerable doubt regarding the
veracity of the evidence of those two witnesses and point to
an infirmity in that evidence as would render it unsafe to
base the conviction of the accused-appellant upon it.
As regards the alleged recovery of knife and ornaments at
the instance of the accused, we find that the evidence
consists of statements of Inspector Rajagopal (PW 13), Kati
Goundar (PW 6) and Chakravarthi (PW 9). According to
Chakravarthi (PW 9), the accused handed over the ornaments
in question to the witness when the accused came to the
house of the witness on the evening of March 12, 1970 and
passed the night at the house. The witness also found knife
in the bed of the accused after he had left on the following
day. According, however, to Kali Goundar (PW 6), the
accused, on interrogation by the Inspector of Police, stated
that he had entrusted the ornaments to Thangam, wife of
Chakravarthi (PW 9). Apart from the discrepancy on the
point as to whom was the person with whom the accused had
kept the ornaments, we find that Thangam, with whom the
accused, according to Kali Goundar PW had kept the
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ornaments, has not been examined as a witness. In view-of
the above statement of Kali Goundar, it was, in our opinion,
essential for the prosecution to examine Thangam as a
witness and its failure to do so would make the Court draw
an inference against the prosecution.
628
Ex. 1 in his bed in the house of Chakravarthi (PW 9) when he
had ample opportunity to throw away the knife in some lonely
place before arriving at the house of Chakravarthi. The
knife in question was found by Chemical Examiner to be not
stained with blood and according to the prosecution case,
the accused had washed it before leaving it in the bed in
the house of Chakravarthi. If the accused realised the
importance of doing away with the blood stains on the knife,
it does not seem likely that he would bring that knife’ to
the house of Chakravarthi and leave it in the bed.
Looking to all the circumstances, we are of the view that it
is not possible to sustain the conviction of the accused on
the evidence adduced. We accordingly accept the appeal, set
aside the conviction of the accused-appellant and acquit
him.
K.B.N. Appeal allowed.
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