MANU/SC/0276/1972

Equivalent/Neutral Citation: AIR1973SC501, 1974(1)AnWR32, 1972CriLJ1296, 1972 INSC 64, (1974)1MLJ32, (1972)3SCC393,
(1972)SCC(Cri)543, [1972]3SCR622, 1972(4)UJ760

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 165 of 1971
Decided On: 25.02.1972 Thulia
Kali Vs. The State of Tamil Nadu
Hon'ble Judges/Coram:
G.K. Mitter and H.R. Khanna, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S.
Lakshminarasu, Adv For
Respondents/Defendant: A.V. Rangam, Adv.
Case Note:
Criminal - evidence - Sections 302 and 379 of Indian Penal Code,
1860 appellant convicted under Sections 302 and 379 for murder
and theft on deceased - sentence to death awarded to appellant
- conviction of appellant solely based upon testimony of two
witnesses - features of prosecution story create considerable
doubt regarding veracity of evidence of two witnesses and not
safe to maintain conviction on basis of their evidence - appellant
acquitted and appeal allowed.
JUDGMENT
H.R. Khanna, J.
1. 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.
2. 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
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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.
3. 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), step-son 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 number of
other villagers then went to the place of occurrence 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.
4. According further to the prosecution, Valanjiaraju went to 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 he 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. 1 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

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from the place of occurrence. Formal first information report P. 15 on the
basis of statement P. 1 was prepared at the police station at 11.45 a.m.
5. Head Constable Rajamanickam, after recording first information
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.
6. 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
Ex. 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.
7. 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,
1970 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.
8. 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 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.
9. 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
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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.
10. The trial Court and the High Court have based the conviction of the
accusedappellant, 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 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.
11. According to document P. 1 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 statement only after having a look at the dead body on the following
morning.
12. 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

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our opinion, 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
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 information 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.
13. 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), Kali 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
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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 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.
14. It is also not clear as to why the accused should leave knife 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.
15. 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.
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