The submission made by the learned counsel deserves consideration. The learned counsel is right when he says that major position (portion) of trial Court's discussion is devoted to the suggestions made by the defence counsel in cross-examination. But before considering the defence-stand and the evidence in support thereof, it is essential for the court to reach a conclusion and record a positive finding about the proof of the prosecution case. The falsity of a suggestion, as in the instant case-consent thrown to a witness would not by itself prove the prosecution case and the guilt of the accused, though in a given case, depending on circumstances, it may be an additional circumstances along with other duly established and proved circumstances against the accused. Since it was suggested to the prosecutrix Surli in her cross-examination that the act was committed with her consent, what the trial Court appears to have done is sharing with assumption of proof of rape and negativing consent convicted the appellant. This aproach, considering the defence plea first, before dealing with the prosecution evidence and reaching a conclusion based thereon is completely wrong. What is its effect is another matter but such an approach on the part of the trial Court cannot be approved of as it does not augur well with well established and well-recognised concepts of criminal jurisprudence.
Whether a suggestion thrown by the defence counsel to a prosecution witness, amounts to an admission on the part of the accused is a crucial question which requires consideration. It is a common practice to suggest to a witness while he or she is under cross-examination, the case of the defence when such evidence or suggestion is denied, it does not constitute any evidence. Suggestions put. are no evidence at all against the accused and on the basis of such suggestion no interference can be drawn against the accused that he admitted the fact suggested in the cross-examination as has been erroneously done by the learned Judge of the trial Court in the instant case. The proof of guilty required of the prosecution does not depend on the suggestion thrown to a witness.
15. On the basis of mere suggestion about consent thrown to the prosecutrix, the learned Judge of the trial Court has virtually dispensed with proof of offence of rape. An accused, as has been discussed above, is not bound by such a situation or implied admission made by the counsel.
19. In criminal cases a suggestion thrown to a prosecution witness under cross-examination by defence counsel cannot be used as an implied admission so as to dispense with proof of the prosecution case. It is only the plea of guilty, pleaded by an accused which can relieve the prosecution of its burden of proof. The learned Judge of the trial Court contrary to these settled principles of criminal jurisprudence has acted upon the suggestion made to the prosecutrix, about her being consenting party to the act.
28. In view of the infirmities pointed above, and the erroneous approach of the trial Court, in construing the suggestion as an implied admission, on the part of the accused, the conviction as recorded by it, circumstance of quick-sand, it is liable to be set aside.
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