Suggestions to witness by defence and reply to the same forms part of evidence to determine guilt of accused; SC upholds conviction in murder case

Suggestion to witness by defense

Supreme Court: In an appeal, the two convicts challenged the order passed by the Bombay High Court wherein the criminal appeal was dismissed and had affirmed the order of conviction for the offence under Section 302 read with Section 34 of the Penal Code, (‘IPC’) and had sentenced him to suffer life imprisonment and fine of INR 1000/- upon default of which they would have to undergo rigorous imprisonment for 6 months. While exercising its criminal appellate jurisdiction, the Division Bench of Sudhanshu Dhulia and J.B. Pardiwala* J.J., while upholding the order of conviction passed by the Bombay High Court and the Trial Court, held that the suggestion made by the defence to a witness in cross-examination, if found to be incriminating, would bind the accused and could not get away stating that his counsel had no implied authority to make suggestions in the nature of admission against him and accordingly asked the two accused to surrender before the Trial Court to serve the sentence.

In the matter at hand, out of 4 persons put to trial, 2 were acquitted by the Trial Court. It was the case of the prosecution that the victims were assaulted with sickle and sword resulting in severe injury on the head and body leading to death of one of the victims. Consequently, the First Information Report (‘FIR’) was lodged within 3 hours from the time of the incident. The deceased was immediately taken to the hospital in a rickshaw who was declared to be brought dead.

Appreciation of Oral Evidence

The Bench stated that appreciating the ocular evidence was a hard task since there was no straight-jacket formula. When the evidence of an injured eyewitness was to be appreciated, the following principles enunciated by the Courts were required to be followed:

(a) The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.

(f) 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 was of the view that the evidence of the prosecution witnesses had to be examined on its own merits. Keeping such principles in mind and perusing the observation made by the Courts below, the Bench found no good reason to disbelieve the ocular version narrated by the three eyewitnesses since they were all consistent in their statements.

In accordance with Article 136 of the Constitution, the Court was of the view that it should not normally interfere with the concurrent findings except in special circumstances. “We are also not to interfere only for the reason that we may arrive at a different conclusion, unless, of course, there are compelling circumstances to tinker with conclusions drawn and that the accused were innocent/guilty.

The Bench stated 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 Bench was quick to clarify that if prosecution was unable to prove its case on its own legs, then it won’t be able to derive advantage from the weakness of the defence and the Court would not be able to convict the accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. “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.”

Principle of Res Gestae

The Court noted that Section 6 and 7 of the Indian Evidence Act, 1872 would be attracted in the present case since the statement of prosecution witness 3 (PW3) was admissible as it was right after the incident.

Exception 4 to Section 300 of IPC

The Bench stated that exception 4 to Section 300 of IPC could be invoked if the death was 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

d) fight must have been with the person killed.

Noticing the extent of injuries suffered by the deceased caused by dangerous weapons like sickle and sword, the Court stated that the only conclusion that can be arrived at was the fact that an offence under Section 302 of IPC was committed. “There was no dispute in the fact that the death of the deceased had occurred due to culpable homicide and not due to accident or suicide”

Therefore, the Bench opined that the case would not fall within Exception 4 to Section 300 IPC and its benefit could not be extended to the accused. “…The appellant had inflicted as many as nine blows with the dangerous weapon on the deceased who was unarmed and was helpless.”

With the above stated observation, the Bench dismissed the appeal, affirming the order passed by the Courts below. Upon perusing the records, it was noted that both the appellants were released on bail pending final hearing of the present appeal who were then asked to surrender before the Trial Court to be sent to judicial custody to serve out the sentence as was imposed.

[Balu Sudam Khalde v State of Maharashtra, 2023 SCC OnLine SC 355, decided on 29-03-2023]

Judgment authored by Justice J.B. Pardiwala

Know Thy Judge| Justice J B Pardiwala

Advocates who appeared in this case:

For the petitioner- Advocate on Record K. L. Janjani, Advocate Pankaj Kumar Singh, Advocate Mr. Kailash J. Kashyap;

For the respondent- Advocate Abhikalp Pratap Singh, Advocate Siddharth Dharmadhikari, Advocate on Record Aaditya Aniruddha Pande, Advocate Bharat Bagla, Advocate Sourav Singh, Advocate Shreya Saxena, Advocate Yamini Singh.

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