How to appreciate evidence of relatives of wife recorded after her death for offence U/S 498A of IPC?

While appreciating the evidence of Kailash Narayan

and Pankaj, it must be kept in mind that such evidence by the

close relatives of the victim, needs to be examined with great

caution, as it would be easy for them to make such accusation

after the death of the victim.  The claim that the victim used to tell them about the harassment, ill­treatment and cruelty meted out to her, after the death of the victim, when the victim would not be available for challenging the same or confronting her with such evidence,   is   quite   easy   to   be   made.     While   it   cannot   even   be suggested that, the witnesses being closely related to the deceased their evidence ought not to be relied upon, the possible dangers in such evidence must be kept in mind.   As observed earlier, such evidence can easily be concocted on the death and the tragic end of that the victim.  Moreover, in such tragic cases, the near ones of the victim, genuinely start believing that her husband or the inlaws are the cause of the death, and therefore, there would be a tendency to modify the facts suitably to see that some how the husband and the in­laws are booked.  In the instant case, applying

the well settled parameters for judging the reliability of evidence,

it   is   impossible   to   come   to   a   conclusion   that   the   evidence   of Kailash Narayan and / or Pankaj can be safely accepted.  There are very obvious and material improvements in their evidence, but, what is further important to note is that, the allegations of cruelty, as reflected from their evidence, are vague and general.  It must be understood that cruelty contemplated by Section 498A of theIPC is different from the concept of cruelty that is recognized inmatrimonial matters.  The explanation appended to Section 498A

of IPC is important in this context.  It makes it clear that cruelty

means 'any wilful conduct which is of such a nature as is likely to

drive the woman to commit suicide or to cause grave injury or

danger to life, limb or health (whether mental or physical) of the

woman.'  The words 'wilful conduct' and 'likely' are significant and indicate that the wilful conduct must be of such a nature, as would be likely to drive a woman to commit suicide or to cause grave injury to her life, limb or health.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.588 OF 2010

KAMLESH SATYAPRAKASH AGARWAL V/s. THE STATE OF MAHARASHTRA  

CORAM : ABHAY M. THIPSAY, J.

DATE : 16th JUNE 2015.

Citation:2016 ALLMR(CRI)4187 Bom

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Whether dying declaration will be vitiated on ground that relatives were present at the time of its recording?

 As such it is clear that the dying declaration does not need
corroboration in all cases.  If the court is satisfied with the correctness of the
dying   declaration,   the   conviction   can   be   based   on   the   basis   of   dying
declaration only.  Learned Counsel Shri N.A. Badar has submitted that there
was every possibility of deceased being tutored by his relatives, particularly
his mother Revati.  His argument is based on the cross­examination of P.W.9,

the Medical Officer, who had given fitness certificate.  It is admitted by this
witness   that   Uncle   of   the   deceased   was   present   when   the   statement   of
deceased was recorded by the Executive Magistrate.  Learned Counsel Shri
N.A. Badar has invited my attention to cross­examination of P.W.5 also where
it was suggested that the relatives were present when the statement was
recorded.  If one goes through the cross­examination of P.W.5, it can safely be
said that Uncle of the deceased was present when the statement of deceased
was being recorded.  However, the question, which arises for determination,
is as to whether presence of uncle by itself will vitiate the sanctity of dying
declaration.     In   my   opinion,   presence   of   relative   by   itself   may   not   be
sufficient to reject the dying declaration.   There should be something on
record   that   the   relative   of   the   deceased   had   in   any   manner   tutored   or
influenced   the  deceased   to  give   a   particular  statement.     Unless   there   is
evidence to suggest that there was interference on the part of the relative,
the presence of relative itself cannot vitiate the dying declaration.   In the
present   case,   there   is   nothing   more   in   the   cross­examination   except
admission on the part of   P.W.9 that Uncle of the deceased was present when
the statement of deceased was recorded.  I do not think that admission on
the part of P.W.9 caused damage to the prosecution case. 
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.186 OF 2012
Sukhdeo s/o Tikaram Bhardwaj,

VERSUS
The State of Maharashtra, 

                             CORAM : M.L. TAHALIYANI, J.
                                  DATED   : 16th JULY, 2014.
Citation;2016 CRLJ(NOC)75 Bom

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