minal 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
section 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 pm 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 exhibit 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 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 1030 pm 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 830 am 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
am 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 1145 am Head Constable Rajamanickam after recording first informa tion report went to the place of occurrence and reached there at 230 pm 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 1230 pm 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 am 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 exhibit 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 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 toMadhandi 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 pm
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 am on March 13 1970
Formal first information report on the basis of the above statement was prepared at the police station at 1145 am
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 pm 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 1030 pm 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 most difficult to believe that even though the accused had been seen at 2 pm 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 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
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
KBN Appeal allowed


Summary:
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 section 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 thought
It is therefore essential that the delay in lodging the report should be satisfactorily explained
626 H