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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. 623 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 624 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. 625 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. 629