IMPORTANT POINT
Police cannot be allowed to tutor prosecution witness – Adverse inference must be drawn against prosecution.

JUDGMENT :

(Abhay S. Oka, J.) :

FACTUAL ASPECTS

1. The appellant in Criminal Appeal No. 407 of 2019 is the accused no.1, and the appellant in Criminal Appeal No.1609 of 2011 is the accused no.2. The Trial Court convicted both the appellants for an offence punishable under Section 302, read with Section 34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). By the impugned judgment, the High Court has confirmed the conviction and life sentence of the appellants.

2. We are referring to the prosecution case in brief. The name of the deceased is Balamurugan. He was staying with his parents – PW-l Mahalingam and PW-2 Veerammal. According to the prosecution case, the deceased had instructed accused no.1 to deliver idlis at his home. On 4th October 2007, at about 9 pm, the deceased came home and enquired with his mother PW-2 whether accused no.1 had delivered the idlis. On learning that accused no.1 had not delivered the idlis, he immediately went out and reached the house of accused no.1. It appears that there was a commotion due to his altercation with the accused no.1. According to the prosecution case, after hearing the commotion, PW-2 and PW-3 (the brother-in-law of the deceased) rushed to the spot. Accused no.2 was present at the spot. After that, accused no.1 entered his house, brought with him a billhook and assaulted the deceased with the billhook. The first blow fell on the right index finger of the deceased. Thereafter, the deceased ran away to the nearby garden of one Karunanidhi. The accused followed him. The accused no.2 held the deceased, and accused no.1 assaulted the deceased with the billhook on his neck. Both the accused fled after that. According to the prosecution case, PW-2, PW- 3, PW-4 (sister of PW-1), and PW-5 (son of PW-4) witnessed the incident.

SUBMISSIONS

3. The learned counsel appearing for the appellant pointed out that the first information report shows that the incident occurred at 10.30 pm. However, from the approximate time of death mentioned in the post-mortem notes, it appears that the incident must have happened before 7 pm. His second submission is that though other independent eyewitnesses were available, the prosecution had chosen to examine only the witnesses closely related to the deceased who were interested and tutored witnesses. Therefore, their testimony deserves to be discarded. Without prejudice, his further submission is that it was the deceased who went to the house of accused no.1 to enquire about the failure of accused no.1 to deliver idlis at his home. The fight started only because the deceased went to the house of accused no.1. He submitted that the post-mortem notes show that the deceased sustained one cut injury on his neck and one minor injury to his finger. He further submitted that there was a sudden fight between the deceased and the accused no.1, and in their sudden fight, without any premeditation, the accused no.1 assaulted the deceased. He would, therefore, submit that this is a case where Exception 4 of Section 300 of IPC will apply, and thus, it will amount to an offence under Part 1 of Section 304 of IPC. He relied upon various decisions of this Court in the cases of:-

(i) No.15138812Y L/Nk Gursewak Singh v. Union of India & Anr., 2023 INSC 648 : 2023 SCC OnLine SC 882

(ii) Ram Manohar Singh v. State of Uttar Pradesh, 2023 SCC OnLine SC 1084

(iii) Ghapoo Yadav & Ors. v. the State of M.P., (2003) 3 SCC 528

(iv) Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327

(v) Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653

(vi) Prakash Chand v. State of H.P., (2004) 11 SCC 381 and

(vii) Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444

4. The learned counsel appearing for the respondent - State urged that the evidence of PW-2 to PW-5 is free of any material contradictions and omissions and, thus, inspires confidence. He submitted that the fact that accused no.1, after a dispute with the deceased, entered his house, brought billhook and then assaulted the deceased