MANIKANDANversusSTATE BY THE INSPECTOR OF POLICE

                 [2024] 4 S.C.R. 234 : 2024 INSC 272

                              Manikandan
                                   v.
                    State by the Inspector of Police
                     (Criminal Appeal No. 1609 of 2011)
                                 05 April 2024
               [Abhay S. Oka* and Pankaj Mithal, JJ.]

                            Issue for Consideration
       Matter pertains to the tutoring of the material witnesses by the
       police and its effect on the prosecution case.

                                   Headnotes
       Evidence – Witnesses – Tutoring of the material witnesses
       by the police – Effect:
       Held: This is a blatant act by the police to tutor the material
       prosecution witnesses-interested witnesses – It amounts to gross
       misuse of power by the police machinery – Police cannot be allowed
       to tutor the prosecution witness – On facts, the appellants convicted
       and sentenced u/ss. 302/34 IPC – Day before the evidence of the
       prosecution witnesses was recorded before the trial court, witnesses
       were called to the Police Station and were taught to depose in a
       particular manner – Their evidence will have to be discarded as
       there is a distinct possibility that the said witnesses were tutored
       by the police on the earlier day – This conduct becomes more
       serious as other independent eyewitnesses, though available,
       were withheld – Furthermore, defence of the accused was that
       they were not present at the place of the incident at the time of the
       incident – One of the prosecution witness admitted that accused
       was working in another village – Thus, serious doubt created about
       the genuineness of the prosecution case – Benefit of substantial
       doubt to be given to the appellants – Before the appellants were
       enlarged on bail, they had undergone incarceration for more than
       10 years – Thus, the courts below erred in convicting the appellants
       – Impugned judgments and orders set aside, and the appellants
       acquitted of the offences alleged against them. [Paras 8, 9]
       Judicial deprecation – Blatant act by the police to tutor the
       material prosecution witnesses at the police station:
       Held: This amounts to gross misuse of power by the Police
       machinery – This kind of interference by the Police with the
* Author
[2024] 4 S.C.R.                                                          235

              Manikandan v. State by the Inspector of Police


     judicial process is shocking – Director General of Police of the
     State to cause an enquiry to be made into the conduct of the
     police officials of tutoring the witnesses at the concerned Police
     Station – Appropriate action to be initiated against the erring
     officials in accordance with the law. [Paras 8, 10]

                             Case Law Cited
            No.15138812Y L/Nk Gursewak Singh v. Union of India &
            Anr. [2023] 10 SCR 1139 : 2023 SCC OnLine SC 882 :
            [2023] INSC 648; Ram Manohar Singh v. State of Uttar
            Pradesh (2023) SCC OnLine SC 1084; Ghapoo Yadav
            & Ors. v. the State of M.P. [2003] 2 SCR 69 : (2003)
            3 SCC 528; Sukhbir Singh v. State of Haryana [2002]
            1 SCR 1152 : (2002) 3 SCC 327; Sandhya Jadhav v.
            State of Maharashtra [2006] 3 SCR 632 : (2006) 4 SCC
            653; Prakash Chand v. State of H.P. [2004] Supp. 3
            SCR 389 : (2004) 11 SCC 381; Pulicherla Nagaraju v.
            State of A.P. [2006] Supp. 4 SCR 633 : (2006) 11 SCC
            444 – referred to.

                                List of Acts
     Penal Code, 1860.

                             List of Keywords
     Evidence; Witnesses; Tutoring of witnesses by police; Interested
     witnesses; Misuse of power by the police machinery; Eye witnesses;
     Incarceration; Judicial process.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1609
     of 2011
     From the Judgment and Order dated 15.09.2009 of the High Court
     of Madras in CRLA No. 250 of 2009
     With
     Criminal Appeal No. 407 of 2019
                         Appearances for Parties
     G. Sivabala Murugan, Mailysamy, Selvaraj Mahendran, C.Adhikesavan,
     P.V. Hari Krishnan, P. Soma Sundaram, R Nedumaran, B Ragunath,
     Mrs. N.C Kavitha, Vijay Kumar, Advs. for the Appellant.
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       Dr. Joseph Aristotle S., Ms. Shubhi Bhardwaj, Ms. Vaidehi Rastogi,
       Advs. for the Respondent.
                 Judgment / Order of the Supreme Court

                                 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
[2024] 4 S.C.R.                                                      237

                  Manikandan v. State by the Inspector of Police


     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.1
            (ii)    Ram Manohar Singh v. State of Uttar Pradesh2
            (iii) Ghapoo Yadav & Ors. v. the State of M.P.3
            (iv) Sukhbir Singh v. State of Haryana4
            (v)     Sandhya Jadhav v. State of Maharashtra5
            (vi) Prakash Chand v. State of H.P.6 and
            (vii) Pulicherla Nagaraju v. State of A.P.7



1   [2023] 10 SCR 1139 : 2023 INSC 648 : 2023 SCC OnLine SC 882
2   2023 SCC OnLine SC 1084
3   [2003] 2 SCR 69 : (2003) 3 SCC 528
4   [2002] 1 SCR 1152 : (2002) 3 SCC 327
5   [2006] 3 SCR 632 : (2006) 4 SCC 653
6   [2004] Supp. 3 SCR 389 : (2004) 11 SCC 381
7   [2006] Supp. 4 SCR 633 : (2006) 11 SCC 444
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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 shows
       that there was a clear intention on his part to assault the deceased.
       Learned counsel submitted that after one blow was given by the
       accused no.1 on the index finger of the deceased, the deceased
       attempted to run away. Both the accused chased the deceased; the
       accused no.2 held the deceased, and after that, accused no.1 gave
       a fatal blow to the neck of the deceased with Billhook. He urged
       that Exception 4 of Section 300 of IPC will not apply in this case.
       OUR VIEW
5.     We have perused the evidence of the material prosecution witnesses.
       PW-1 is the father of the deceased, who had admittedly not seen
       the incident. PW-2 is the mother of the deceased. PW-2 in her
       examination-in-chief stated thus:
            “About one year ago, my son came at 9.00 P.M. to house.
            My son asked me whether the 1st accused Siva had given
            idli to me. I told him Siva did not give idli. Immediately
            thereafter he said that he will go and ask Siva why he
            did not give idli and went from there. Thereafter, after
            sometime we heard a sound from the side of Siva’s house.
            I ran and saw there. By that time, the 1st accused Siva
            had cut my son with the billhook. That cut fell on the index
            finger. Immediately my son escaped and ran towards the
            tract of Karunanidhi. Immediately Siva and Manikandan
            chased my son and ran behind him and Manikandan had
            held my son. Siva had cut my son on his neck. My son
            inclined and fell down. I ran and screamed ‘Ayyo, Ayyo’.
            By hearing my noise, Annappattu, Ganesan, Arivazhagi,
            Velayudham came there running. The accused had thrown
            the billhook in their hands. After I saw my son, and lifted
            him, I came to know that my son was dead.”
6.     In her examination-in-chief, she attempted to make out a case that
       the accused had spoken ill about her daughter-in-law. Admittedly,
       she did not say so in her statement recorded by the police. Most
       importantly, in the cross-examination by the advocate for accused
[2024] 4 S.C.R.                                                          239

             Manikandan v. State by the Inspector of Police


     no.1, she stated, “Yesterday, I, my husband and other witnesses went
     to Haridwarmangalam Police station. There, the police authorities
     taught us how to adduce evidence.” It is pertinent to note that the
     evidence of PW-1 to PW-5 was recorded on 20th November 2008.
     Thus, it is apparent that on 19th November 2008, the first five
     interested witnesses, PW-1 to PW-5, who were closely related to
     the deceased, were called to the Police Station and were taught by
     the police how to depose against the accused. It is pertinent to note
     that the prosecution did not put questions to the witness by way of
     re-examination on this aspect. The investigation officer did not offer
     any explanation for this. Therefore, we must proceed on the footing
     that the first five witnesses were “taught” at the Police Station how
     to depose. This happened a day before the day their evidence was
     recorded before the Court.
7.   PW-3 is the brother-in-law of the deceased. He deposed that he
     was residing near the house of the accused no.1. His version in the
     examination-in-chief about the incident is the same as the version of
     PW-2. PW-4 knew the family of the deceased and the accused, as he
     stated that the accused were residing in the same colony in which he
     was residing. His version of the incident in the examination-in-chief is
     the same as that of PW-2 and PW-3. PW-5 also knew the accused
     and the family of the deceased as he was also staying in the same
     colony in which the accused were staying. His version of the actual
     incident of the assault is the same as the other three prosecution
     eyewitnesses. PW-3 to PW-5 were admittedly the relatives of the
     deceased. PW-5, in his cross-examination, stated that he, along with
     five persons, attempted to prevent accused no.1 from assaulting the
     deceased. The other five witnesses referred to by PW-5 have not
     been examined as witnesses.
8.   Thus, the scenario which emerges is that precisely a day before
     the evidence of PW-1 to PW-5 was recorded before the Trial Court,
     they were called to the Police Station and were taught to depose
     in a particular manner. One can reasonably imagine the effect of
     “teaching” the witnesses inside a Police Station. This is a blatant act
     by the police to tutor the material prosecution witnesses. All of them
     were interested witnesses. Their evidence will have to be discarded
     as there is a distinct possibility that the said witnesses were tutored
     by the police on the earlier day. This kind of interference by the Police
     with the judicial process, to say the least, is shocking. This amounts
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       to gross misuse of power by the Police machinery. The Police cannot
       be allowed to tutor the prosecution witness. This conduct becomes
       more serious as other eyewitnesses, though available, were withheld.
       We are surprised that both the Courts overlooked this critical aspect.
       It is pertinent to note that the defence of the accused, as can be seen
       from the line of cross-examination, was that they were not present at
       the place of the incident at the time of the incident. PW-2 admitted
       that accused no.1 was working in another village called Tirrupur.
       Although available, independent witnesses were not examined by
       the Prosecution. Therefore, adverse inference must be drawn against
       the prosecution. Hence, there is a serious doubt created about the
       genuineness of the prosecution case. The benefit of this substantial
       doubt must be given to the appellants. Before the appellants were
       enlarged on bail by this Court, they had undergone incarceration for
       more than 10 years.
9.     Therefore, in our considered view, both the Sessions Court and the
       High Court have committed an error in convicting the appellants.
       Hence, the appeals are allowed. The impugned judgments and
       orders are set aside, and the appellants are acquitted of the offences
       alleged against them. Their bail bonds stand cancelled.
10. The Director General of Police of the State of Tamil Nadu shall
    cause an enquiry to be made into the conduct of the police officials
    of tutoring PW-1 to PW-5 at the concerned Police Station. Needless
    to add, appropriate action shall be initiated against the erring officials
    in accordance with the law.

       Headnotes prepared by: Nidhi Jain                   Result of the case:
                                                             Appeals allowed.