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

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