In CR.A. No. 1910 of 2010-SC- Defence counsel’s suggestion to witness in cross-examination, if found to be incriminating in nature, would bind accused: Supreme Court
Justices Sudhanshu Dhulia & J.B. Pardiwala [29-03-2023]

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Read Judgment: BALU SUDAM KHALDE AND ANOTHER v. THE STATE OF MAHARASHTRA 

 

Tulip Kanth

 

New Delhi, April 5, 2023: While refusing to agree with the submission that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value if it incriminates the accused in any manner, the Supreme Court has clarified that any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. 

 

Referring to the judgment in Rakesh Kumar alias Babli v. State of Haryana, the Division Bench of Justice Sudhanshu Dhulia and Justice J.B. Pardiwala said, “Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.”

 

The case of the prosecution was that on the fateful day of the incident the first informant(first witness), was chatting with his friend Abbas Baig (deceased). At that time, while the second appellant accompanied by few other individuals was passing by the side, he was accosted by the deceased Abbas. There was some verbal altercation between the two. 

 

After sometime the first and second appellants and the other two co-accused who came to be acquitted by the Trial Court reached at the spot. A fight ensued in which the first informant was assaulted on his head which was alleged to have been laid by the first appellant. 

 

The first informant suffered a bleeding injury on his head. Thereafter, a severe assault was laid on the deceased by means of a sickle and sword and he ultimately succumbed to such injuries.

This appeal by special leave at the instance of two convict persons was directed against the judgment of the Bombay High Court affirming the order of conviction passed by the Additional Sessions Judge whereby both the appellants were convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code, 1860  and sentencing them to suffer life imprisonment.

 

Enumerating the judicially evolved principles for appreciation of ocular evidence in a criminal case, the Bench opined that when eye-witness is examined at length it is quite possible for him to make some discrepancies but courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

 

The Bench also highlighted the fact that the presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded, the Bench added.

 

Further, the Bench also observed that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.

 

On the facts of the case, the Bench opined that in the cross-examination of the third witness, a suggestion was put to him that he had inquired with the first witness as to what had happened and the first witness in turn narrated the incident to third witness. This suggestion put by the defence counsel to the third witness was answered in the affirmative. This part of the evidence of the  third witness was corroborated by the evidence of the first witness.

 

As there was no dispute that the death of the deceased occurred due to culpable homicide and not due to accident or suicide, the Bench had to consider whether the incident came within any of the exceptions indicated in Section 300 of the Code.

 

Noting that the  the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder, the Bench said, “On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found.”

 

Having regard to the nature of the injuries caused by dangerous weapons like sickle and sword which were applied on the vital part of the body, the Bench came to the conclusion that it was a case of Section 302 of the IPC.

 

Referring to its judgment in Rajwant Singh v. State of Kerala  and considering the fact that the appellants herein inflicted as many as nine blows with a dangerous weapon on the deceased who was unarmed and was helpless, the Top Court said, “For cases to fall within clause (3) of Section 300 of the IPC, it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature.”

 

Thus, dismissing the appeal and noting that the accused-appellants were ordered to be released on bail pending the final hearing of the present appeal, the Bench cancelled the bail bonds and ordered both the appellants to surrender before the Trial Court.



 

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