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Wednesday , December 26 , 2012
Since 1st March, 1999
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Hostile witness account can be used: SC

- ‘If some portion of the statementů inspires confidence, it can be relied upon’

New Delhi, Dec. 25: The initial testimony of a hostile witness can be counted on “to the extent it is corroborated by other reliable evidence”, the Supreme Court has said, partly upholding a murder conviction despite a retraction by the killer’s daughter.

“If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. It cannot be thrown out as wholly unreliable,” a bench of Justices Swatanter Kumar and Gyan Sudha Mishra observed in a recent order, citing an earlier apex court ruling in which a similar view was taken.

If such a testimony is not shaken on material points during cross-examination, there is no ground to “discard the same in toto and can be relied upon partly”.

The observations were made as apex court upheld the conviction of Attar Singh for hitting his wife, whose fidelity he suspected, with a log, resulting in her death.

The bench, however, reduced Singh’s life sentence to 10 years on the ground that his action was not pre-meditated and fell under the definition “culpable homicide not amounting to murder”.

A Maharashtra trial court had held Singh guilty and punished him with a life term, relying on forensic evidence and the initial testimony of his daughter who had seen her father chase her mother with the log following a quarrel.

The incident had occurred on June 22, 2005, at their house in Majanipada village. The hamlet falls in the Shirpur area of the state’s Dhule district.

The daughter later turned hostile. Bombay High Court had upheld the order in 2008, prompting Singh to appeal to the Supreme Court.

Justice Mishra, who wrote the judgment for the two-judge bench, rejected the defence lawyer’s plea that the testimony of a hostile witness cannot be relied upon. “If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus, the testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness,” she said in the order.

The court pointed out that the daughter was the only witness at the time of the incident and hence her initial testimony cannot be discarded.

“It is open to courts to consider the evidence (the initial testimony of a hostile witness) and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused.”

The bench said lower courts had rightly drawn inferences from forensic reports, such as chemical analysis of the bloodstains on the victim’s clothes.

“Thus, the material on record, along with the evidence of the prosecution witnesses, lead to only one inference that the accused was the author of the injury suffered by the victim and we have rightly been convinced that the accused and the accused alone inflicted fatal injuries upon the victim.”

The judges were convinced, though, there was no evidence to suggest Singh had plotted the attack, saying it occurred during the heat of arguments between the couple. Further, there was nothing on record to show that he was regularly beating up his wife, the judges said.

“It was only in the course of (a) hot exchange of words and abuses which drove him to take the extreme step of beating his wife with a log with such force and intensity that she sustained head injury, profusely bled and finally died on the spot,” the bench observed, reducing Singh’s term to 10 years.

At the same time, the bench observed that Singh had “sufficient knowledge” that his attack would result in her death. “Although the accused-appellant might not be attributed with the intention to kill his wife, killing her was definitely there in the appellant’s mind,” it said.

“In fact, he gave vent to his feeling by finally killing her when he hit her to take revenge for her alleged infidelity without realising that the suspicion of her fidelity was not provedů. Even if it did, that gave no right to him to kill his wife in a brutal manner by hitting her hard enough with a log of wood with such intensity which was sufficient in the ordinary course of nature to kill the victim,” the apex court added.