Nitish Banka

    • Interested Witness in 498a and how to deal?

    In most of the 498a case the interested witnesses are the core of the criminal trial.

    The witnesses of wife like father mother, brother do come to court and reiterate the version of complaint.

    But the question here is

    Do conviction happen on just there testimony?

    The Answer to this depends on the case in hand… I had earlier also made a video on interested witness you first have to watch this to get an idea…

    You see, the thing is that the conviction only on basis of interested witnesses is not possible.

    But what if there are other circumstances which can happen in your case, depends on facts.

    Then conviction can happen…

    Like in the case of Liyakuddin the wife commited suicide and husband was convicted under 498/306 why?

    The case did have all the interested witnesses…

    Still the husband was convicted.

    The reason for the conviction was the rule. The rule was that the testimony of the interested witnesses cannot be disregarded completely.

    Well here are the all Supreme court Judgments about the law.

    The Supreme Court in the case of Mahavir Singh vs. State of M.P. reported in (2016) 10 SCC 220 has held as under:-

    ” The High Court has attached a lot of weight to the evidence of the said Madho Singh (PW 9) as he is an independent witness. On perusal of the record, it appears that the said person already had deposed for the victim family on a number of previous occasions, that too against the same accused. This being the fact, it is important to analyse the jurisprudence on interested witness. It is a settled principle that the evidence of interested witness needs to be scrutinised with utmost care. It can only be relied upon if the evidence has a ring of truth to it, is cogent, credible and trustworthy. Here we may refer to chance witness also. It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted.

    A contradicted testimony of an interested witness cannot be usually treated as conclusive.”

    The Supreme Court in the case of Harbeer Singh vs. Sheeshpal reported in (2016) 16 SCC 418 has held as under:

    . Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony was not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.

     In Darya Singh v. State of Punjab, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said: (AIR p. 331, para 6) “6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. … But where the witness is a close relation of the victim and is shown to share the victim’s hostility to his assailant, that naturally makes it necessary for the criminal courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. … If the criminal court is satisfied that the witness who is related to the victim was not a chance witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised.”

    However, we do not wish to emphasise that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly interested witnesses. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.

    Further, in Raghubir Singh v. State of U.P., it has been held that: (SCC p. 84, para 10) “10. … the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need to be produced without unnecessary and redundant multiplication of witnesses. … In this connection general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when spirits on both sides are running high has to be borne in mind.”

    The Supreme Court in the case of Vijendra Singh vs. State of U.P. reported in (2017) 11 SCC 129 has held as under:

    “31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P. would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) “[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.” It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.”

    The Supreme Court in the case of Raju vs. State of T.N., reported in (2012) 12 SCC 701 has held as under:

    The first contention relates to the credibility of PW 5 Srinivasan. It was said in this regard that he was a related witness being the elder brother of Veerappan and the son of Marudayi, both of whom were victims of the homicidal attack. It was also said that he was an interested witness since Veerappan (and therefore PW 5 Srinivasan) had some enmity with the appellants. It was said that for both reasons, his testimony lacks credibility.

    What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki. It was held that: (SCC p. 754, para 7) “7. … True, it is, she is the wife of the deceased; but she cannot be called an ‘interested’ witness. She is related to the deceased. ‘Related’ is not equivalent to ‘interested’. A witness may be called ‘interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be ‘interested’.”

    In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, the view that a “natural witness” or “the only possible eyewitness” cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was “concerned in the success of the trap”. The Constitution Bench held: (AIR p. 506, para 15) “15. … The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person.”

    Now the interested witness testimony cannot be disregarded if there is an independent witness

    Now what happened in he case of Liyakuddin there was an independent evidence an agreement

    The appellant went to the parental home of the deceased and tendered his unconditional apology and also assured the security of the deceased in future and also executed an agreement on a stamp paper of Rs.5/- in front of the Panchas and thereafter, the appellant brought the deceased to her matrimonial house. However, even thereafter the behaviour of the appellant as well as other co-accused persons did not improve and consequently the deceased Mumtaz Bee committed suicide on 16.10.1996 by ablazing herself after pouring kerosene oil.

    The prosecution has also relied upon an agreement executed between the appellant and the deceased which has been marked as Ex.P/4. In the said agreement, although there is no specific allegation against the appellant to the effect that he had maltreated or treated the deceased with cruelty because of non-fulfillment of demand of dowry, but it is specifically mentioned that their relations had become strained because of some family dispute and the appellant had also mentioned in the said agreement that now he would keep the deceased properly as his wife and would not fight with her on any issue and he would behave properly with his wife (deceased) and the children, and would not harass her without any reason and he would provide her meals properly and would look after his wife and children. It is also mentioned in the said agreement that the appellant would keep the deceased as his wife and would provide all facilities for which a wife is entitled. He has also undertaken to provide food and clothes regularly and would not restrain the deceased from visiting her family members. Thus, although the agreement Ex.P/4 does not contain the exact allegations of cruelty committed by the appellant, but in view of the undertakings given by the appellant, it is clear that the appellant was treating the deceased with cruelty, as a result of which, she had come to her parental home and ultimately the appellant tendered his unconditional apology and assured the family members of the deceased that he would treat her properly and by way of an evidence to the said assurance, the agreement Ex.P/4 was executed. Although, the appellant in his statement recorded under Section 313of Cr.P.C. has given an evasive reply to the execution of agreement Ex.P/4, but he has not disputed his signatures on the said agreement Ex.P/4.

    Conclusion

     is well established principle of law that when a person creates a situation before the deceased where he/she is left with no other option but to put an end to his/her life, it would amount to abetment as defined under Section 107 of IPC. In the present case, at the first instance, the deceased was maltreated and harassed as well as beaten by the appellant and, therefore, the deceased came back to her parental home and lodged a report against the appellant and, accordingly, the appellant along with the other family members was being tried for an offence under Section 498-A of IPC. It appears that thereafter, the appellant came to the parental home of the deceased, tendered his unconditional apology and assured the family members of the deceased that the mistakes which he had committed in the past will never be committed in future and the deceased would be given the respect for which she is entitled and he had also assured by giving it in writing by executing an agreement Ex.P/4 that all facilities including the food, clothing etc. would be provided to the deceased, but after relying upon the assurances given by the appellant, when the deceased went back to her matrimonial house, then again the behaviour of the appellant did not improve and under these circumstances, if the deceased was of the view that now there is no possibility of any improvement in the behaviour of the appellant and a situation has been created by the appellant where the deceased had lost all hopes of happy married life and when she got an impression that now she has no option but to put an end to her life, then it can be safely said that the appellant had committed an offence for abetment of suicide. Accordingly, this Court is of the considered opinion that the appellant is guilty of offence under Sections 498-A and 306 of IPC.