Bombay HC: The court should not put to accused U/S 313 of CRPC, material appearing in the cross-examination of prosecution witnesses taken by Advocate for accused

 On going through the questions, particularly Q. No. 38 and further questions till Q. No. 45, I find that the material which has appeared during the course of cross-examination of the concerned witnesses taken on behalf of the accused, had been put to the accused so as to elicit his appropriate response to the same. This material, it can be seen, has been considered as constituting incriminating circumstances against the accused. It is well settled law that only those circumstances which incriminate the accused can be put to the accused so that he is made aware of the same and is able to give appropriate response. It is the law laid down in Tara Singh's case, supra. The question in this case would be, whether the material appearing in the cross-examination of the prosecution witnesses taken by the learned counsel for the accused could be considered as something going against the accused and the answer, as rightly submitted by the learned counsel for the applicant, would be a firm “No”. The reason being that such material though it goes against the accused, is ultimately accepted by him to be so and, therefore, would be out of bound of Section 313 of Criminal Procedure Code. It would be not covered by the scope of this section and, therefore, there is no need for the Court to bring to the notice of the accused once again such a material. If the accused consciously puts some questions which yield answers revealing incriminating circumstances, same would be in the nature of admitted facts from which the accused cannot keep distance. They may even be unexpected by the accused, being the result of the cross-examination having gone haywire. Yet, he cannot disown them they being of his own making. Such material cannot be said as incriminating from the lens of Section 313 Criminal Procedure Code. Purpose of this section is to enable the accused to explain personally the circumstances appearing in evidence against him and not to resile from his own admissions. The objection, therefore, taken in this regard on behalf of the accused/petitioner ought to have been allowed. But, the learned Judge ignoring the well settled principles of law has rejected the same wrongly by going against the spirit of Section 313 of Criminal Procedure Code. The impugned order deserves to be quashed and set aside.

{Para 5}

6. In the result, writ petition is allowed. The objection taken by the learned counsel for the petitioner/accused in respect of Question Nos. 38 to 45 is upheld and these questions stand deleted from the statement of the petitioner/accused recorded under Section 313 of Criminal Procedure Code. The trial shall proceed in accordance with law.

 In the High Court of Bombay

(Before S.B. Shukre, J.)

Urvashi Vs State of Maharashtra 

Criminal Writ Petition No. 166 of 2016

Decided on June 20, 2016

Citation: 2016 SCC OnLine Bom 5379 : (2016) 3 AIR Bom R (Cri) (NOC 47) 15 : (2016) 3 Bom CR (Cri) 422

Print Page

Whether Suggestions Made By Defence Counsel To Witnesses In Cross-Examination If Incriminating Binds Accused?

We are of the view from the aforesaid that the suggestions put by the defence counsel in the cross-examination of the eyewitnesses establishes the presence of PW 1 Asgar Shaikh at the scene of offence and the factum of assault could also be said to have been admitted. The reply to the suggestions answers the submission canvassed by the learned Counsel for the Appellants that PW1 Asgar Shaikh should not be believed or relied upon as there is nothing on record to indicate that he was an injured eyewitness. The defence could be said to have admitted the presence of PW Asgar Shaikh. When the aforesaid part of the cross-examination of PW1 Asgar Shaikh was brought to the notice of the defence counsel, he submitted that a suggestion put by defence counsel to a witness in his cross-examination has no evidentiary value and even if the same is incriminating in any manner would not bind the Accused as the defence counsel has no implied authority to admit the guilt of the facts incriminating the Accused. {Para 33}

34. According to the learned Counsel such suggestions could be a part of the defence strategy to impeach the credibility of the witness. The proof of guilt required of the prosecution does not depend on the satisfaction made to a witness.

38. 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.

39. 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. As a legal proposition we cannot agree with the submission canvassed on behalf of the Appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the Accused in any manner.

40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the Accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an Accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the Accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the Accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the Accused and this is exactly what has happened in the present case.

41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The Accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.

42. Therefore, we are of the opinion 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.

44. During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the Accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.

45. However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. Take for instance in case of a charge of rape Under Section 376 of the Indian Penal Code, the statement of the Accused contained plain denial and a plea of false implication, a subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not, by itself, amount to admission of guilt on behalf of the Accused. In cases of rape, it is permissible for the Accused to take more than one defence. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness would not amount to an admission on the part of the Accused. At the same time, if the defence in the cross examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the Accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same. We may give one more example of a case where the Accused would plead right of a private defence. Such a defence is always available to the Accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the Accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the Accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the Accused is established the same would definitely be admissible in evidence. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1910 of 2010

Decided On: 29.03.2023

 Balu Sudam Khalde and Ors.  Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Sudhanshu Dhulia and J.B. Pardiwala, JJ.

Dated: MANU/SC/0328/2023,2023 SCCONLINE SC 355

Author: J.B. Pardiwala, J.

Print Page

Should the court provide copies of questions to be put to accused U/S 313 of CRPC to the public prosecutor and defence counsel and seek their assistance?

22. Before we part with this judgment, we must take a note of sub-section (5) added to Section 313 of CrPC w.e.f. 31st December 2009. Sub-section (5) reads thus:

“313. Power to examine the accused.-

(1) … … …

(2) … … … …

(3) … … … …

(4) … … … …

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.”

23. In many criminal trials, a large number of witnesses are examined, and evidence is voluminous. It is true that the Judicial Officers have to understand the importance of Section 313. But now the Court is empowered to take the help of the prosecutor and the defence counsel in preparing relevant questions. Therefore, when the Trial Judge prepares questions to be put to the accused under Section 313, before putting the questions to the accused, the Judge can always provide copies of the said questions to the learned Public Prosecutor as well as the learned defence Counsel and seek their assistance for ensuring that every relevant material circumstance appearing against the accused is put to him. When the Judge seeks the assistance of the prosecutor and the defence lawyer, the lawyers must act as the officers of the Court and not as mouthpieces of their respective clients. While recording the statement under Section 313 of CrPC in cases involving a large number of prosecution witnesses, the Judicial Officers will be well advised to take benefit of subsection (5) of Section 313 of CrPC, which will ensure that the chances of committing errors and omissions are minimized.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1471 of 2023

Raj Kumar @ Suman    Vs State (NCT of Delhi).

(Before Abhay S. Oka and Rajesh Bindal, JJ.)

Author: Abhay S. Oka, J.

Dated: May 11, 2023.

Citation: 2023 SCC OnLine SC 609.

Print Page

What role should court should play in criminal trial?

It is clear that even though the Court is not supposed to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence, and even though the Court is not supposed to be silent spectator to the examination-in-chief or cross examination, the Court should not assume the role of prosecution or defence lawyer and put the questions to the witnesses to jeopardise the prosecution case or the defence of the accused.

9. It is true that under section 165 of the Evidence Act ample powers have been given to the Court to have effective and proper control over the trial and Court can ask any question, in any form, at any time. This is an absolute power given to the Court. However, the power has to be used sparingly and only when the circumstances justify its use. From the manner in which the witness is examined by the Court it does not appear that it was necessary for the Court to put so many questions to the witnesses particularly when cross examination was in progress.

Bombay High Court

Ahmed Khan Alikhan Deshmukh vs The State Of Maharashtra & Another on 11 November, 1998

Equivalent citations: 1999 (5) BomCR 158, 1999 BomCR Cri, 1999 (1) MhLj 401

Bench: D Deshpande

Print Page

Duty of court when fair trial to accused is denied due to incompetency of his counsel

During the course of hearing of the appeal, this court was
shocked to note that none of the prosecution witnesses were cross
examined by the learned counsel for the appellant. It will be apt to
reproduce the cross-examination of the victim who was the star
witness. The said cross examination runs as under;
“It is not correct to suggest that, the accused did not
commit sexual intercourse with me. It is not correct to
suggest that, whatever statement, I have given today
is entirely false.
It is noted that almost all witnesses are cross examined in
the similar fashion and there is no cross examination of any witness
on the vital issues of the case. It is thus abundantly clear that the
appellant did not get the fair trial. Though it was the mistake on the
part of the learned counsel for the appellant to cross examine the
witnesses in such a superficial manner, without going into the merits
of the evidence of the witnesses, the learned trial Court was also
under obligation to see that the appellant gets fair trial. In the instant
case, it was necessary for the learned trial Court to intervene and to
find out from the lawyer if he was competent to appear for and on
behalf of the appellant. The learned trial Court was not prevented
from appointing a lawyer from the panel maintained under the Free
Legal Aid. In brief, it can be stated that the appellant is entitled for
fair opportunity to defend himself.
If the appellant did not
understand the carelessness and negligence shown by his counsel,
the learned trial Court should have immediately taken necessary
steps to see that the appellant gets a fair trial.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.398 OF 1998
Anantram @ Moru s/o. Babulal Bawankar,
V
The State of Maharashtra,

CORAM : M.L. TAHALIYANI, J.
DATED : 17th JULY , 2014.
Citation;2015 ALLMR(CRI)975

Print Page

Whether suggestion put by defence counsel to prosecution witness can be treated as admission of that fact by defence side?

In impugned judgment in paragraph 37, Trial Court relies upon Tarun Bora v. State of Assam, (MANU/SC/0675/2002 : (2002) 7 SCC 39), to note that suggestion of the defence can act as admission of fact suggested. Paragraph 14 and 15 of the Apex Court ruling shows that the appellant had identified accused Tarun Bora and he stated in para 16 that "Accused Tarun Bora did not blind my eyes nor he assaulted me." Hon'ble Apex Court observed that said part of cross-examination is suggestive of the presence of accused Tarun Bora in the whole episode and it clearly suggest the presence of the accused Tarun Bora as admitted. The only denial was held to be that the accused did not participate in blindfolding the eyes of the witness nor assaulted him. Next judgment looked into by the Trial Court is State of Rajasthan v. Om Prakash, (MANU/SC/7788/2007 : (2007) 12 SCC 381) : (2007 ALL MR (Cri) 2080 (S.C.)), in para 12 Hon'ble Apex Court notes the suggestion put in cross-examination which was - "Today I do not remember whether the accused had inflicted the said katari obliquely or straight". Hon'ble Apex Court states that the essence of the question appeared to be that though the accused had given the katariblow, the witness did not remember whether it was inflicted obliquely or straight. Hon'ble Court also holds that this by itself may not be sufficient to fasten the guilt on the accused, but was certainly a relevant factor.

79. Thus, none of these judgments lay down that due to such suggestion, the substantive defence of accused gets eclipsed. Such suggestions as also answers thereto call for an independent evaluation of its impact on whole defence, if it can be viewed as a relevant suggestion made with an intention to dilute or to relinquish the defense. We feel that roving cross-examination of prosecution witness by an advocate in an attempt to fish out whatever possible in favour of his client can not be always construed as an admission of the fact about which such suggestion was given.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 201, 413 and 463 of 2010

Decided On: 01.08.2014

Appellants: Vijay and Ors.
Vs.
Respondent: The State of Maharashtra

Hon'ble Judges/Coram:B.P. Dharmadhikari and C.V. Bhadang, JJ.

Citation: 2015ALLMR(Cri)180

Read whole judgment here; click here

Print Page

Whether accused can raise plea that trial is vitiated as they were not provided proper legal assistance?

Arts. 21, 22(1) and 14 - Fair trial - Right to proper legal assistance - Challenge to death sentence on ground of prejudice
resulting from errors by defence counsel - Tenability and manner of appreciation of effect of said prejudice - Held, the
totality of circumstances should be considered to find out if there is a reasonable probability that in the absence of
alleged errors by defence counsel causing prejudice, the court independently reweighing evidence, aggravating and
mitigating circumstances would not have awarded death sentence - In that case death sentence should be commuted -
The present case is not one such case, though death sentence has been commuted on other considerations mentioned
in Shortnote A - Taking the totality of circumstances into consideration, it cannot be said that the accused was not given
proper legal assistance in the trial court and High Court - No doubt PW 17 should not have been subjected to cross-
examination without being put to chief-examination - There is no scope under S. 138, Evidence Act to start with cross-
examination without examination-in-chief - But the participation of appellant in the crime was otherwise proved beyond
reasonable doubt, 

SUPREME COURT OF INDIA
Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747

Print Page