Suggestions Made By Defence Counsel To Witnesses In Cross Examination If Incriminating Binds Accused: Supreme Court

In a recent case, the Supreme Court held that the suggestion made by the defence counsel to a witness in the cross-examination, if found to be incriminating, would definitely bind the accused. And, the accused can’t get away stating that his counsel had no implied authority to make suggestions in the nature of admissions against his client.

This pertinent aspect in Trial was explained by a Bench of Justices of Justices Sudhanshu Dulia and JB Pardiwala.

“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.”

The Court was hearing an appeal of two murder convicts challenging a judgement of the Bombay High Court upholding the sentence imposed by the Additional Sessions Judge, Pune. The judge had convicted both the appellants for offences under Section 302 read with Section 34 of the Indian Penal Code, 1860. In its judgement, the Court also reiterated certain important principles on the appreciation of oral evidence of injured eye witnesses during the trial stage.The initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. The prosecution, the Court said, has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. However, the Bench made an important clarification.

“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”.

The Court viewed that the three eyewitnesses in the present case inspired confidence So, to fortify its view, the Bench 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. Though the suggestions have “no evidentiary value”, this proposition of law won’t hold good at all times, it added. In the case, during the course of cross-examination the defence counsel had put such a suggestion, the answer to which went directly against the accused.

“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…..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.”

The Court clarified that the main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. However, many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. “The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused”, the Court said, while dismissing the appeal pleas.

Case Title: Balu Sudam Khalde And Another Versus The State Of Maharashtra | Criminal Appeal No. 1910 Of 2010

Citation : 2023 LiveLaw (SC) 279

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