Case Comment

Case: - Thulia Kali v. The State of Tamil Nadu AIR 1973 SC 501
Statute: - Constitution of India, Art. 136, SS. 302 & 379 IPC.
Facts: -
 Thulia Kali was convicted by sessions judge salem U/S. 302 IPC for
causing death of Madhandi and U/S 379 I.P.C for committing theft of
ornaments of deceased.
 The accused was sentenced to death for committing offence U/S. 302
and no separate sentence was awarded for offence U/S. 379 I.P.C.
 The High Court of madras affirmed the conviction and sentence of the
accused.
 The accused preferred an appeal against H.C.’s conviction to the S.C. by
special leave.
Prosecution Case: -
The deceased purchased land from elder brother of accused. The land of the
accused adjoined the land of the deceased. The accused wanted the deceased
to sell the land to him which the deceased declined. Instead the deceased
constructed a fence around her land, which obstructed the passage to
accused’s land.
On the day of incident, the deceased left her house along with her daughter-
in- law Kopia (PW), for grazing cattle shortly thereafter her step- son
Velanjiaraju (PW1) also reached there and started cutting plants near the place
of grazing cattle. It was reported that the accused came to that place and
asked the deceased whether she would give him right of passage or not. Upon
negative reply of the deceased the accused took out Knife and gave a number
of blows to the deceased in spite of her entreaties to accused not to stab her
and that she would give him what he wanted.
Kopia raised alarm, met Velanjiaraju, who want towards the accused who
threatened them with Knife. They, there upon went to the village and
informed deceased’s husband and other villagers who went to the place of
occurrence and found dead body of the deceased with injuries on different
parts of the body.
Both of her ears were found to have been chopped off and jewels removed.
Prosecution Story: -
 Velanjiaraju (velan. in short, hereafter) went to house of village
munsif to inform about the occurrence, but he was away from her
house to another village and returned at 10:30 p.m and was told by
velam. about the occurrence
 The village munsif did not record the statement of Mr. Velan. At
that time and told him to go to the spot where dead body was lying
on the following morning.
 Accordingly, the village munsif went to the spot next day morning
at 8:30 a.m and had a look at the deceased’s body and recorded the
statement was then sent by him to police station situated at
distance of two miles.
 Finally, the FIR basis of the recorded statement of Mr. Velan was
prepared at police station at 11.45 a.m
Decision & observation: -
The S.C observed the following in light of the facts and records of the case
Delay in lodging the FIR
The court took note of the prosecution document about delay in lodging FIR
due to the munsif’s having gone away from his home, and who was informed
about the incident at 10:30 p.m while he returned his house. According to the
prosecution document the FIR was recorded next day only as referred above.
The court noted that it was not clear as to why no respect was lodged by velan.
at the police station situated at less than two miles away from his village, on
the day of occurrence March 12, 1970. The court noted that while a large no.
of villagers had come to Know of the death of the deceased, it was expected of
Mr. Velan and Kopia who had witnessed the occurrence to report the matter
to the police station.
The court in the above context, noted that “…………. 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……” (para 12 of the judgement).
Furthermore, the court relied on the statement of accused that villages came
to know of deceased’s death on March 12, 1970 but they did not 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 the case.
In light of the above facts, the court observed as follows W.R.T. FIR in a
Criminal case: -
1. It is an extremely vital piece of evidence for corroborating oral
evidence adduced at trial.
2. The importance of FIR can hardly be overestimated from standpoint
of accused.
3. The object upon insisting upon print lodging of FIR is to obtain early
information regarding circumstances of commission of offence
names of actual culprits & the parts played by them as well as
names of eye witnesses present at the scene.
4. Delay in lodging FIR quite often results in embellishment which is a
creature of afterthought.
5. On account of delay, the report loses advantage of spontaneity and
danger creeps in of the introduction of colored version, exaggerated
account or concocted story as a result of deliberation and
consultation.
6. It is therefore, essential that the delay in lodging the FIR should be
satisfactorily explained.
Finding of the court: -
1. In light of the circumstances of commission of offence considerable
doubt is raised with respect to veracity of evidence of Mr. Velan and
Kopia which points out an infirmity in that evidence rendering it unsafe
to base the conviction of the accused- appellant upon it.
2. In relation to alleged recovery of knife and ornaments, the court
analyzed the statement of witness that the accused handed over the
ornaments to the witness while he came to his house on evening of
March 12, 1970 and passed the night at that house. The witness also
stated that the accused left the knife in the bed while he left on the
following day.
In light of the above statement the court noted he person with whom
the ornaments were entrusted by the accused was not examined by
the prosecution which was essential for it.
The court ruled that failure to examine the said witness would lead
court to draw an inference against prosecution.
3. Relating to veracity of statements of the witnesses about leaving the
knife in the bed and washing it before so leaving the court noted that
 the same is brushed aside the report of the chemical examiner to the
effect of Knife’s being not stained with blood as well as presence of
ample opportunity to throw away the knife in some lonely place before
coming to the house of the witness.
Decision: -
Looking to all the circumstances the court held that it was not possible to
sustain the conviction of the accused on the evidence adduced.
Order: -
Appeal accepted, Conviction of accused- appellant set aside and accused-
appellant acquitted.
Salient aspects of importance of the case: -
1) Importance of FIR- Lodging without unreasonable delay and its
evidentiary value for corroboration of oral evidence
2) Duty of prosecution in due process of law (adversarial trial) is of
paramount significance.
3) Accused is not guilty until and unless proved so beyond reasonable
doubt.
4) For a brilliant exposure on prosecutor’s role refer to.
H. L. Packer’s article on “Two Models of Criminal Process”.

Dr. P. K. Shukla