R/Cr.A/2083/2008 Cav Judgment

R/CR.
A/2083/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2083 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR

BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No

judgment ?
4 Whether this case involves a substantial question of law as No

to the interpretation of the Constitution of India, 1950 or
any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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TARJUBHAI NARSINGBHAI RATHWA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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===============
Appearance:
MR HARNISH V DARJI, ADVOCATE for the Appellant(s) No. 1
MS CHETNA M SHAH, APP for the Opponent(s)/Respondent(s) No. 1
==========================================
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.

BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 14/02/2014
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Downloaded on : Sun Nov 17 11:59:26 IST 2019

R/CR.A/2083/2008 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. The present appeal is at the instance of a convict
accused for the offence punishable under Section 302 of the
Indian Penal Code and is directed against an order of
conviction and sentence dated 15 th July 2008 passed by the
learned Additional Sessions Judge, Fast Track Court No.3,
Chhota Udepur, in Sessions Case No.23 of 2008.
2. By the aforesaid order, the learned Additional Sessions
found the appellant guilty of the offence punishable under
Section 302 of the Indian Penal Code and consequently
sentenced him to suffer life imprisonment with a fine of
Rs.10,000/- and in default of payment of fine further rigorous
imprisonment for the period of one year.
3. In absence of any evidence to establish the charge of
Section 504 of the Indian Penal Code, the accused-appellant
was acquitted of the offence punishable under Section 504 of
the Indian Penal Code as well as of the one punishable under
Section 135 of the Bombay Police Act as the prosecution failed
to prove that on the date of the commission of offence there
was a notification issued by the District Magistrate prohibiting
Page 2 of 54

possession of a knife used in the commission of the offence.
4. CASE OF THE PROSECUTION:-
4.1 On 16th December 2007 at around 3 O' Clock in the
afternoon the deceased and the accused together had gone to
the agricultural field for carrying out agricultural operations. In
the evening at around 7 O' Clock while both were returning
home together there was an altercation between the two. The
wife of the deceased namely Lilaben apprehending that the
accused might assault her husband intervened and brought
the deceased along with her at home. After completing dinner
when the deceased and his wife Lilaben were preparing to go
to sleep, the accused came shouting at their house and broke
opened the door of the house by giving a kick blow. The
accused thereafter demanded money from the deceased to
consume liquor. The deceased refused to give money to the
accused as a result of which the accused pounced on the
deceased while the deceased was in a sleeping posture and
saying why he refused to give him money, inflicted injuries on
the neck of the deceased with a knife leaving the deceased in
a pool of blood. The wife of the deceased raised shouts for
help and on hearing her shouts the brother of the deceased
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named Gamarsing residing in the adjoining house came
running and saw that the accused was hurling abuses. The
accused thereafter went away from the house of the deceased.
Immediately after the incident the wife of the deceased went
to the Quant Police Station and lodged a First Information
Report, Exh.26.
4.2 On the strength of the FIR lodged by the wife of the
deceased, the investigation commenced. The inquest
panchnama-Exh.15 was drawn in presence of the two panch
witnesses. The dead body of the deceased was sent for
postmortem examination and the postmortem revealed that
the deceased had sustained an oblique incised wound of 4 cm.
X 1 cm. X 2.5 cm. on the left side of the throat, near the
thyroid cartilage and jugular vessels were found to be cut. The
thyroid cartilage and trachea were also found to be cut. The
cause of death assigned in the postmortem, Exh.9, was
hemorrhagic shock due to injury on the throat. The scene of
offence panchnama Exh.18 was drawn in presence of the two
panch witnesses. The clothes of the deceased stained with
blood were collected and were sent for chemical analysis to
the Forensic Science Laboratory.
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4.3 On 17th December 2007 the accused was arrested and his
arrest panchnama, Exh.20, was drawn in the presence of the
two panch witnesses. The clothes worn by the accused at the
time of his arrest were collected and were sent to the Forensic
Science Laboratory for chemical analysis. The accused, while
in police custody after arrest, expressed his willingness to
point out the place where he had hidden the weapon of
offence, namely, the knife and accordingly a discovery
panchnama, Exh.21, under Section 27 of the Evidence Act was
drawn in presence of the two panch witnesses and pursuant to
the place pointed out by the accused the muddamal article
knife used in the commission of offence was collected by the
investigating officer and sent to the Forensic Science
Laboratory for chemical analysis.
4.4 According to the serological test report human blood was
detected on the muddamal article knife as well as on the cover
in which the knife was placed. The serological test report also
indicated that there were stains of human blood on the
muddamal article lungi which had been worn by the accused at
the time of the incident.
4.5 Finally, a charge-sheet was filed against the accused in
the Court of Judicial Magistrate, First Class, Chhota Udepur. As
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the case was exclusively triable by the Sessions Court, the
Judicial Magistrate, First Class, committed the case to the
Sessions Court under Section 209 of the Code of Criminal
Procedure.
4.6 The Sessions Court framed the charge against the
accused at Exh.3 and the statement of the accused was
recorded. The accused did not admit the charge and claimed
to be tried.
4.7 The prosecution adduced the following oral evidence in
support of its case.
PW 1 Dr.Jayantbhai Manubhai Exh.7 The medical officer

Parmar who performed
postmortem of the
dead body of the
deceased.
PW 2 Lilaben Keshariyabhai Exh.11 The wife of the
deceased and an
eye-witness.
PW 3 Lasliben Raisingbhai Exh.12 The mother of the
deceased and an
eye-witness.
PW 4 Gamarsing Raisingbhai Exh.13 Brother of the
deceased and an
eye-witness.
PW 5 Kesurbhai Jagabhai Exh.14 Panch witness of the
inquest panchnama
as well as the
discovery
panchnama.
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PW 6 Jetsi Dalsing Rathva Exh.22 Circle Officer.
PW 7 Pratapsinh Mansinh Exh.25 Investigating Officer.

Damor
4.8 The following pieces of documentary evidence were
adduced by the prosecution.
Sr. Name of the Document Exh. No.

No.
1 A yaadi for postmortem 8
2 Police report 9
3 Postmortem note 10
4 Inquest Panchnama 15
5 Panchnama of seizure of dead body 16
6 Panchnama of the scene of offence 18
7 Arrest panchnama 20
8 Discovery panchnama 21
9 The complaint of the complainant 26
10 Report in respect of registration of the 27
offence.
11 Special Report 28
12 Inquest yaadi 29
13 Yaadi for FSL guideline 30
14 Primary report of FSL 31
15 Dispatch note 32
16 The receipt in respect of receiving 33
muddamal by FSL
17 FSL report 34
4.9 After completion of the oral as well as the documentary
evidence of the prosecution, the statement of the accused
under Section 313 of the Code of Criminal Procedure was
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recorded in which the accused stated that the complaint was a
false one and since he was an agriculturist engaged in
agricultural operations stains of blood were found on the lungi
collected at the time of his arrest by the police.
4.10 At the conclusion of the trial, the learned trial Judge
convicted the accused for the offence punishable under
Section 302 of the Indian Penal Code and sentenced him as
stated herein before.
4.11 Being dissatisfied, the accused-appellant has come up
with the present appeal.
5. CONTENTIONS ON BEHALF OF THE ACCUSED-
APPELLANT:-
5.1 Mr.Harnish Darji, the learned advocate appearing for the
appellant submitted that the trial Court committed a serious
error in holding the accused guilty of the offence of murder
punishable under Section 302 of the Indian Penal Code.
Mr.Darji submitted that the trial Court ought not to have placed
reliance on the evidence of the three eye-witnesses i.e. the PW
2, Lilaben, PW 3, Lasliben and PW 4, Gamarsing as they could
not be said to be wholly reliable witnesses. Mr.Darji submitted
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that the trial Court committed a serious error in placing
reliance on the evidence of the discovery of muddamal article
knife as the panch witnesses of the discovery panchnama
failed to support the case of the prosecution and were declared
as hostile witnesses. Mr.Darji also submitted that in the
present case the prosecution has not been able to establish
the exact place of occurrence. According to Mr.Darji, the
incident is alleged to have occurred inside the house of the
deceased while the deceased was preparing to go to sleep
whereas on the other hand according to the scene of offence
panchnama, a puddle of blood was found on the cement road
outside the house. In such circumstances, according to
Mr.Darji the entire story of the prosecution that the deceased
was inflicted injuries inside his house should be discarded and
benefit of doubt deserves to be granted in favour of the
accused.
5.2 Mr.Darji submitted that as the prosecution could not be
said to have proved its case against the accused beyond
reasonable doubt, the appeal merits consideration and the
order of conviction and sentence be set aside.
6. SUBMISSIONS ON BEHALF OF THE STATE:-
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6.1 Ms.Chetna Shah, the learned Additional Public Prosecutor
submitted that the trial Court rightly rejected the finding of
guilt of the accused for the offence of murder punishable under
Section 302 of the Indian Penal Code by placing reliance on the
evidence of the three witnesses, namely, wife, mother and
brother of the deceased.
6.2 Ms.Shah submitted that the medical evidence on record
fully substantiates the case of the prosecution that the
accused had caused injuries on the neck of the deceased with
a knife. Ms.Shah further submitted that nothing substantial
could be elicited in the cross-examination of the three eye-
witnesses so as to render their evidence doubtful in any
manner.
6.3 Ms.Shah also submitted that blood stains were found on
the lungi which was worn by the accused at the time of the
incident and the explanation in that regard by the accused in
his further statement recorded under Section 313 of the
Criminal Procedure Code is palpably false.
6.4 Ms.Shah lastly submitted that the presence of the
accused at the time of the incident is well established by the
few suggestions made by the defence to the PW 2, Lilaben, the
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wife of the deceased and the PW 4, Gamarsing, brother of the
deceased as well.
6.5 In such circumstances, referred to above, Ms.Shah would
submit that there being no merit in this appeal, the same may
be dismissed and the order of conviction and sentence be
upheld.
7. Having heard the learned counsel appearing for the
parties and having gone through the materials on record the
only question that falls for our determination in this appeal is
whether the trial Court committed any error in finding the
accused guilty of the offence of murder punishable under
Section 302 of the Indian Penal Code.
8. We first propose to consider the medical evidence on
record so as to satisfy ourselves whether the case of the
prosecution that the accused had inflicted injuries with a knife
on the neck of the deceased is in consonance with the ocular
version of the eye witnesses to the incident.
9. Dr.Jayantbhai Manubhai Parmar was examined by the
prosecution as the PW 1 to prove the postmortem report vide
Exh.7. Dr.Parmar in his evidence has deposed that on 17 th
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December 2007 he was on duty as a medical officer at the
Community Health Center, Quant. At 10:30 in the morning, he
received a yadi from the Police Sub Inspector, Quant, asking
him to carry out postmortem of the dead body of one
Kesariyabhai Raisingbhai Rathva. On 17 th December 2007,
Dr.Parmar had carried out the postmortem of the deceased
and noted the following external as well as internal injuries on
the body of the deceased.
(i) An incised wound of 4 cm X 1 cm X 2.5 cm on the left
side of throat, oblique, near the left side of thyroid
cartilage.
(ii) Underlying skin, subcutaneous tissue, and blood vessels
are cut.
(iii) Margins of the wound clear, well defined and averted.
(iv) Underlying carotid and jugular vessels are cut.
(v) Thyroid cartilage, esophagus and trachea are cut.
(vi) Thyroid cartilage is cut.
11. The cause of death assigned in the postmortem report
prepared by Dr.Parmar, Exh.10 was hemorrhagic shock due to
injury on the throat. Dr.Parmar in his evidence has further
deposed that the injuries sustained by the deceased were
possible by a sharp cutting weapon. On being shown the
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muddamal article no.5 knife, Dr.Parmar deposed that the
injuries mentioned in column no.17 of the postmortem note
were possible by such a knife. Dr.Parmar also deposed that
due to profuse bleeding the deceased must have gone in a
hemorrhagic shock resulting in his death. From the cross-
examination of Dr.Parmar by the defence nothing substantial
could be elicited so as to render the testimony of Dr.Parmar
doubtful in any manner.
12. Thus, from the medical evidence on record, it is evident
that the deceased had sustained an incised wound caused by a
sharp cutting weapon like knife. We have noticed that the
carotid and jugular vessels were cut including the thyroid,
esophagus and trachea.
13. The above takes us to consider the evidence of the eye
witnesses examined by the prosecution.
14. The wife of the deceased namely, Lilaben Kesariyabhai
was examined by prosecution as PW 2 vide Exh.11. Lilaben in
her evidence has deposed that on the date of the incident at
around 3 O' Clock in the afternoon her husband, the deceased,
had gone to an agricultural field. At around 7 O' Clock in the
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evening the deceased and the accused were returning home
and at that point of time the accused was demanding money
from the deceased for consuming liquor. She has further
deposed that in that regard both were quarreling with each
other.
15. The PW 2, Lilaben somehow brought her husband home
thereafter. After dinner when the PW 2, Lilaben and the
deceased were preparing to go to sleep the accused came
shouting at their house. She has further deposed that the
accused entered the house by giving a kick on the door and
straightway pounced on her husband while he was in a
sleeping posture and inflicted injuries with a knife on the neck.
This witness has further deposed that she raised shouts
saying, “hitting knife, hitting knife”. She has further deposed
that her husband started bleeding profusely. No sooner had
she raised shouts than her brother-in-law i.e. the brother of the
deceased residing next door came running at their house. In
her cross-examination a suggestion was made by the defence
counsel that her brother-in-law came running only after the
knife was inflicted and the shouts were raised. Such
suggestion was admitted by the witness. She has further
deposed in her cross-examination that when the accused came
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at her house he had worn a “lungi” and was bare-chested. The
lungi which the accused had worn was somewhat reddish in
colour. A question was put by the defence counsel as to what
she had to say about the fact that the accused was wearing a
lungi of a different colour rather than of a red colour as
asserted by her. The PW 2, Lilaben stuck to her version that
the lungi was of red colour.
16. It is evident from the evidence of the PW 2, Lilaben that
the accused has admitted his presence at the house of the
deceased by putting a suggestion that the accused had not
worn a lungi of red colour but the colour was different. The
other suggestion that the brother-in-law of the PW 2, Lilaben
came at her house only after the injuries were inflicted and
shouts being raised would also establish the presence of the
accused. Nothing substantial could be elicited through the
cross-examination of the PW 2, Lilaben, which would render
her evidence untrustworthy or doubtful. On the contrary, from
the cross-examination by the defence counsel, the presence of
the accused gets established.
17. The prosecution examined Lasliben Raisingbhai, the
mother of the deceased vide Exh.12. The PW 3, Lasliben, in
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her evidence has deposed that at the time of the incident she
was residing along with her son, the deceased. At the time of
the incident, everyone in the house was preparing to go to
sleep after having dinner. In the night the accused came and
kicked the door open. She has deposed that the accused
pounced upon her son and inflicted injuries with a knife on his
neck. She has further deposed that she persuaded the
accused not to beat her son. In the cross-examination of the
PW 3, Lasliben, nothing substantial could be elicited so as to
render her evidence doubtful or untrustworthy in any manner
except few minor contradictions in the form of omissions.
18. The prosecution also examined Gamarsing Raisingbhai
vide Exh.13, the brother of the deceased. The PW 4,
Gamarsing Raisingbhai in his evidence has deposed that the
deceased happened to be his first brother and was residing in
the house adjoining to his house, on hearing the shouts of the
PW 2, Lilaben stating “Tarju is assaulting my husband” he
rushed at the house of his brother and told the accused to stop
but the accused in turn showed the knife to this witness.
According to the PW 4, by that time, the accused had already
inflicted the injuries on the neck of his brother.
19. In the cross-examination of this witness, a suggestion
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was made that by the time he had reached the house of the
deceased the assailant Tarju had already ran away. Such
suggestion was denied by this witness. The other suggestion
put to this witness was that after the incident on shouts being
raised, Tarju, the accused, with a knife in his hand, had ran
away. This witness admitted such suggestion to be true.
20. It is evident from the evidence of the PW 4, Gamarsing,
Exh.13, that the defence has admitted the presence of the
accused at the house of the deceased with a knife.
21. The prosecution also examined one Kesurbhai Jagabhai
as a panch witness to prove the panchnama of the discovery of
weapon of offence, namely, the knife. This witness was
declared as a hostile witness by the prosecution as he failed to
support the case of the prosecution.
22. We have also gone through the evidence of the PW 7,
Pratapsing Damor, the investigating officer, Exh.25. The PW 7,
Shri Damor in his evidence has deposed the manner in which
the investigation was carried out. He has also deposed about
the discovery of the weapon of offence at the instance of the
accused by drawing a panchnama to that effect. In the cross-
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examination of this witness, he deposed that it was true that
the first informant Lilaben, the wife of the deceased, in her
complaint had stated that Tarju, the accused, had come at her
house shouting and had broken open the door of the house by
giving a kick and demanded money from the deceased for
consuming liquor.
23. While appreciating the evidence of a witness the
approach must be whether the evidence of the witness read as
a whole appears to have a ring of truth. Once that impression
is formed, it is undoubtedly necessary for the Court to
scrutinize the evidence, more particularly, keeping in view the
deficiencies, draw-backs and infirmities pointed out in the
evidence as a whole and evaluate them to find out whether it
is against the general tenor of the evidence given by the
witness and whether the earlier evolution of the evidence is
shaken as to render it unworthy of belief. Minor discrepancies
on trivial matters not touching the core of the case, hyper-
technical approach by taking sentences torn out of context
here or there from the evidence, attaching importance to some
technical error committed by the investigating officer not going
to the root of the matter would not ordinarily permit rejection
of the evidence as a whole. If the Court before whom the
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witness gives evidence had the opportunity to form the opinion
about the general tenor of evidence given by the witness, the
appellate Court which had not this benefit will have to attach
due weight to the appreciation of evidence by the trial Court
and unless there are reasons weighty and formidable it would
not be proper to reject the evidence on the ground of minor
variations or infirmities in the matter of trivial details. Even
honest and truthful witnesses may differ in some details
unrelated to the main incident because power of observation,
retention and reproduction differ with individuals. Cross
examination is an unequal duel between a rustic and refined
lawyer. [See State of U.P. v. M.K.Anthony (AIR 1985 SC 48)].
24. On overall re-appreciation and assessment of the oral
evidence on record, we are convinced that the version of the
three eye witnesses is absolutely trustworthy and consistent
with each other and corroborating further with the medical
evidence on record. In our opinion, even the suggestions put
by the defence counsel in the cross-examination of the eye
witnesses, referred to above, establishes the presence of the
accused at the time of the incident with a knife. Once the
accused admits his presence at the time of the incident the
onus would shift upon him to explain as to what had brought
him at the house of the deceased with a knife.
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25. At this stage, we deem it necessary to deal with an
important submission canvassed by Mr.Darji appearing for the
accused-appellant. Mr.Darji strenuously submitted that a
suggestion put by a 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 or
the facts incriminating the accused. Mr.Darji submitted that if
the suggestions are taken as a whole they definitely points
towards the guilt of the accused establishing his presence at
the time of the incident with a knife but that, by itself, would
not be sufficient to hold the accused guilty of the offence of
murder. In short, the sum and substance of the submission of
Mr.Darji is that such suggestions should be ignored and on the
basis of such suggestions no inference can be drawn against
the accused that he admitted the facts referred to in the
suggestions. Mr.Darji further submitted that such suggestions
could be a part of the defence strategy to impeach the
credibility of the witness. According to Mr.Darji the proof of
guilt required of the prosecution does not depend on the
suggestion made to a witness.
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26. Although Mr.Darji placed no reliance on any precedent to
fortify his submission yet a little research on our own revealed
that a Division Bench of this High Court in the case of Koli
Trikam Jivraj and Another v. The State of Gujarat
reported in 1969 Criminal Law Journal 409 has taken such a
view that the suggestions put in cross-examination are no
evidence at all against the accused and on the basis of such
suggestions no inference can be drawn against the accused
that he admitted the facts referred to in the suggestions.
27. We are afraid we are unable to persuade ourselves to
subscribe to the views expressed by their Lordships in the case
of Koli Trikam Jivraj (supra) but as the decision is of a Division
Bench and binding to a coordinate Bench we must discuss the
same and ascertain whether the view taken in it still holds
good in light of the Supreme Court decisions later in point of
time.
28. In Koli Trikam Jivraj (supra) during the course of cross-
examination questions were put to witnesses, namely,
Dharamsinh and Premji by the lawyer of the accused which
unmistakably indicated that the accused nos.1 and 2 admitted
that a fight had taken place between them on one side and
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Dharamsinh and Talsinh on the other during the night of the
occurrence. In the cross-examination of Dharamsinh, it was
suggested by the lawyer of the accused that Talsinh and he
had severely beaten the accused nos.1 and 2 and he was
falsely implicating the accused in order to save themselves
from a case that might be filed against them. A similar
suggestion was also made in the cross-examination of Premji
Prag and the suggestion was as follows:
"Q: Is it true that your two sons beat accused Nos. 1 and 2 very
severely outside your vadi land?”
28.1 The answer was as under:
“A.: It is not true that my two sons Dharamshi and Talshi

severely belaboured accused No. 1, No. 2 outside my vadi. I did
not come to know either from Dharamshi or from Chhagan that
they had beaten the opponents. It is not true that I wanted to
concoct the evidence in this case,"
28.2 The trial Court took into consideration such suggestions
and held the accused persons guilty by making the following
observations:
“This line of cross-examination as pointed out earlier would

unmistakably show that accused Nos. 1 and 2 admit that a fight
Page 22 of 54

did take place between them on one side and Dharamshi and
Talshi on the other side during the night of occurrence. If that is
proper inference to be drawn, then field of inquiry becomes
very narrow. Only question then remains is whether that fight
took place inside vadi land of Premji Prag or outside it If it took
place inside vadi land of Premji Prag, why accused Nos. 1 and 2
came inside vadi land on the night of occurrence and that too
at unearthly hour of midnight . . . .Evidence against accused
Nos. 1 and 2 is that they admit that a fight had taken place
between them and Dharamshi and Talshi on the other hand.
The question asked in the cross-examination of Dharamshi and
Premji Prag is to the effect that Dharamshi and Talshi, sons of
Premji, beat accused Nos. 1 and 2 during the night of the
occurrence just outside their vadi land. This question leaves no
room for doubt that accused Nos. 1 and 2 admit that fight did
take place between accused Nos. 1 and 2 on the one hand and
Dharamshi and Talshi on the other hand. Mr. Shah had urged
that statement of accused has to be accepted as a whole or has
to be rejected as a whole. That principle does not arise in this
case at all because I am not accepting inculpatory part of the
statement and rejecting exculpatory part as inherently
improbable."
28.3 During the course of arguments, the learned Public
Prosecutor appearing for the State highlighted before their
Lordships the observations, referred to above, made by the
trial Court and submitted that the view taken by the trial Court
relying on such suggestions was correct and the conviction
deserved to be confirmed.
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28.4 The Division Bench did not agree with the submission
canvassed by the learned Public Prosecutor and negatived the
same by observing as under:
“15. To put it shortly Mr. Nanavati in advancing this argument

merely repeated the main ground on which the conviction of
the appellants was based by the learned Sessions Judge viz.,
that the accused No. 1 and accused No. 2 admitted their
presence at the scene of the offence and that they were beaten
by Dharamshi and Talshi. If the lawyer of the accused puts a
suggestion to a prosecution witness that a particular event
happened, or happened in a particular manner, then it cannot
be implied that the lawyer commits himself to such an
assertion. Suggestions put in cross-examination are no
evidence at all and on the basis of such suggestions no
inference can be drawn against the accused that he admitted
the facts referred to in the suggestions. It is possible that in
putting suggestions the lawyer of the accused, if he thinks fit
and proper, may not put the entire case of the accused in the
cross examination of a prosecution witness.
16. Moreover the lawyer who appears for the accused

keeping in mind the facts of the case that he defends, has the
right to take up a defence that he thinks just and proper. In Nga
Ba Sein v. Emperor, 37 Cri LJ 293 = (AIR 1936 Rang 1), the
facts were that the accused was charged for committing
murder of his brother-in-law. The defence taken by the accused
was that he had not caused the injury. In the Sessions Court
the lawyer appearing for the accused openly advised his client
to admit the assault and plead the right of private defence but
the accused was stubborn and persisted in denying altogether
Page 24 of 54

his liability In the crime. The learned Sessions Judge did not
allow the lawyer to take up the plea of right of self-defence and
the High Court hearing the appeal observed:--
"Moreover, in this particular case it is not correct to say

that the right of self-defence was not pleaded. It was
pleaded by the pleader who was appearing for the
appellant and if the pleader of the accused cannot set up
a defence on his behalf, then I would ask what is the use
of his appearing at the trial at all. The accused himself
may on his own behalf take up a line of defence but it is
equally open to his pleader on his behalf to take up
another and alternative line of defence."
Therefore, the accused is entitled to the benefit of the plea set

up by the lawyer but it cannot be said that the plea or defence
which his lawyer puts forward must bind the accused. The
reason is that in a criminal case a lawyer appears to defend the
accused and has no implied authority to make admissions
against his client during the progress of the litigation either for
the purpose of dispensing with proof at the trial or incidentally
as to any facts of the case. See Phipson's Manual of Evidence,
Eighth Edition Page 134. It is, therefore, evident that the role
that a defence lawyer plays in a criminal trial is that of assisting
the accused in defending his case. The lawyer has no implied
authority to admit the guilt or facts incriminating the accused.
The argument of Mr. Nanavati that suggestion put by the
lawyer of the accused in the cross-examinations of the
prosecution witnesses amounts to an admission under Section
18 of the Indian Evidence Act cannot be accepted.
17. Now in the present case it is in evidence that the

question that Dharamshi and Talshi had caused injuries to the
Page 25 of 54

appellants was even put to Premji Prag who was not an eye-
witness to the incident. It seems question in form of suggestion
had been put in the cross-examination of the prosecution
witness for question's sake. In their statements under Section
342 accused No. 1 and accused No. 2 stated that on the night
of occurrence the bullock of accused No. 1 had gone away from
his yadi land and, therefore, they had gone in the search of the
bullock, in the field situated within the revenue limits of village
Khakhoi. When they were passing through one field two
persons came there, beat them and they fell down. The
accused did not know who these persons were or to which
village they belonged. Thus it was not the case of the accused
in their statements that they were beaten near the field of
Premji Prag and at the time at which Dharamshi and Talshi
were beaten. It was not their case that there was a fight
between them and their assailants. The suggestions put by
their lawyer in cross examination of Dharamshi and Talshi were
thus not adopted by the accused in their statements under
Section 342 of the Criminal Procedure Code. It is also to be
noted that the attention of the appellants was not drawn while
recording their statements under Section 342 of the Criminal
Procedure Code to these denials of the suggestions put in the
cross-examination of Dharamshi and Premji and no
circumstance can be used against the accused unless he has
been given an opportunity to explain the same. Thus from
mere fact that suggestions were made in the cross
examination of the prosecution witnesses to the effect that
Dharamshi and Talshi had beaten the appellants outside the
vadi land, no inference can be drawn that the accused had
admitted the same.
18. There is another principle which is equally to be borne in
Page 26 of 54

mind that suggestions made in the cross-examination of

prosecution witnesses cannot be used to fill in the gaps in the
evidence of prosecution. Burden lies on the prosecution to
prove the guilt of the accused. Such suggestions cannot stand
higher than the statement of the accused under Section 342 of
the Criminal Procedure Code. The statement of the accused
under Section 342 of the Criminal Procedure Code cannot be
used against the accused unless the prosecution proves its
case against him by satisfactory evidence. At times it is used
only to lend an assurance to the case of the prosecution case
but it can never be used to fill in the gap in the evidence of
prosecution. The learned Sessions Judge was obviously, in our
opinion, in error in relying on the suggestions put in the cross-
examination of prosecution witnesses Dharamshi and Premji by
the lawyer of the accused, accepting them as statements of the
accused and binding on them, and treating the case put
forward therein as a circumstance against the accused. In the
present case the evidence led by the prosecution is totally
insufficient to prove that the accused had committed the crime
and no question of lending assurance to prosecution arises. The
circumstance that suggestions were put to the prosecution
witnesses in their cross-examinations that Dharamshi and
Talshi beat the accused Nos. 1 and 2 outside their vadi cannot
be used against the accused to fill in the gap in the evidence of
prosecution.”
29. To our mind, with great respect, the views expressed by
Their Lordships in Koli Trikam Jivraj (supra) does not lay down
the correct proposition of law in view of the subsequent
decisions of the Supreme Court on the issue in question.
Page 27 of 54

30. In Tarun Bora alias Alok Hazarika v. State of Assam
reported in 2000 Cri.LJ 4076, a three Judge Bench of the
Supreme Court was dealing with an appeal against the order
passed by the Designated Court, Guwahati, in TADA Sessions
case wherein the appellant was convicted under Section 365 of
the Indian Penal Code read with Section 3 (1) and 3 (5) of the
Terrorists and Disruptive Activities (Prevention) Act.
30.1 The Supreme Court while considering the evidence on
record took note of a suggestion which was put to one of the
witnesses and considering the reply given by the witness to
the suggestion put by the accused, arrived at the conclusion
that the presence of the accused was admitted. We quote with
profit the following observations made by the Supreme Court
in paragraph 15, 16 and 17:
“15. The witness further stated that during the assault, the
assailant accused him of giving information to the army about
the United Liberation Front of Assam (ULFA). He further stated
that on the third night he was carried away blind-folded on a
bicycle to a different place and when his eyes were unfolded,
he could see his younger brother-Kumud Kakati (P.W.-2) and his
wife Smt. Prema Kakati (P.W.-3). The place was Duliapather,
which is about 6-7 kms. away from his village Sakrahi. The
witness identified the appellant-Tarun Bora and stated that it is
he who took him in an ambassador car from the residence of
Nandeswar Bora on the date of the incident.
Page 28 of 54

16. In cross-examination the witness stated as under :

"Accused-Tarun Bora did not blind my eyes nor he
assaulted me."
17. This part of cross-examination is suggestive of the
presence of accused-Tarun Bora in the whole episode. This will
clearly suggest the presence of the accused-Tarun Bora as
admitted. The only denial is the accused did not participate in
blind-folding the eyes of the witness nor assaulted him.”
31. In Rakeshkumar alias Babli v. State of Haryana
reported in AIR 1987 SC 690, the Supreme Court was dealing
with an appeal against the judgment of the High Court
affirming the order of the Sessions Judge whereby the
appellant and three other persons were convicted under
Section 302 read with Section 34 of the Indian Penal Code.
While re-appreciating the evidence on record, the Supreme
Court noticed that in the cross-examination of the PW 4,
Subesing, a suggestion was made with regard to the colour of
the shirt worn by one of the accused persons at the time of the
incident. The Supreme Court taking into consideration the
nature of the suggestion put by the defence and the reply
arrived at the conclusion that the presence of the accused
namely Dharam Vir was established on the spot at the time of
occurrence. We quote with profit the following observations
made by the Supreme Court in paragraph 8 and 9 as under:
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“8. P.W. 3, Bhagat Singh, stated in his examination-in-chief

that he had identified the accused at the time of occurrence.
But curiously enough, he was not cross-examined as to how
and in what manner he Could identify the accused, as pointed
out by the learned Sessions Judge. No suggestion was also
given to him that the place was dark and it was not possible to
identify the assailants of the deceased.
9. In his cross-examination, P.W. 4, Sube Singh, stated that

the accused Dharam Vir. was wearing a shirt of white colour. It
was suggested to him on behalf of the accused that Dharam Vir
was wearing a shirt of cream colour. In answer to that
suggestion, P.W. 4 said "It is not correct that Dharam Vir
accused was wearing a shirt of cream colour and not a white
colour at that time." The learned Sessions Judge has rightly
observed that the above suggestion at least proves the
presence of accused Dharam Vir, on the spot at the time of
occurrence.”
32. 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.
33. Any concession or admission of a fact by a defence
Page 30 of 54

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 views expressed by Their Lordships of
this Court in Koli Trikam Jivraj (supra) 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. At the same time, we
are also unable to agree with the views expressed by Their
Lordships of this Court that a statement of an accused
recorded under Section 313 of the Criminal Procedure Code
does not deserve any value of utility if it contains inculpatory
admissions.
34. So far as the value of a statement made by an accused
recorded under Section 313 of the Criminal Procedure Code is
concerned we should look into with profit the observations
made by a three Judge Bench decision of the Supreme Court in
the case of State of U.P. v. Lakhmi reported in AIR 1998 SC
1007. The Supreme Court made the following observations
which, in our opinion, fortifies the view we propose to take on
the issue.
“7. As a legal proposition we cannot agree with the High Court
Page 31 of 54

that statement of an accused recorded under Section 313 of

the Code does not deserve any value of utility if it contains
inculpatory admissions. The need of law for examining the
accused with reference to incriminating circumstances
appearing against him in prosecution evidence is not for
observance of a ritual in a trial, nor is it a mere formality. It has
a salutary purpose. It enables the Court to be apprised of what
the indicated persons has to say about the circumstances
pitted against him by the prosecution. Answers to the
questions may sometimes be flat denial or outright repudiation
of those circumstances. In certain cases accused would offer
some explanations to incriminating circumstances. In very rare
instances accused may even admit or own incriminating
circumstances adduced against him, perhaps for the purpose of
adopting legally recognized defences. In all such cases the
Court gets the advantage of knowing his version about those
aspects and it helps the Court to effectively appreciate and
evaluate the evidence in the case. If an accused admits any
incriminating circumstances appearing in evidence against him
there is no warrant that those admissions should altogether be
ignored merely on the ground that such admissions were
advanced as a defence strategy.
8. Sub-section (4) of Section 313 of the Code contains

necessary support to the legal position that answers given by
the accused during such examination are intended to be
considered by the Court. The words "may be taken into
consideration in such enquiry or trial" in sub-section (4) would
amount to a legislative guideline for the Court to give due
weight to such answers, though it does not mean that such
answers could be made the sole basis of any finding.
Page 32 of 54

9. Time and again, this Court has pointed out that such
answers of the accused can well be taken into consideration in
deciding whether the prosecution evidence can be relied on,
and whether the accused is liable to be convicted of the
offence charged against him; vide : Sampath Singh v. State of
Rajasthan, (1969) 1 SCC 367 : (AIR 1969 SC 956); Jethamal
Pithaji v. Assistant Collector of Customs, Bombay, (1974) 3 SCC
393 : (AIR 1974 SC 699); Rattan Singh v. State of Himachal
Pradesh, (1997) 4 SCC 161 : (1997 AIR SCW 587).
10. We make it clear that answers of the accused, when they

contain admission of circumstances against him are not by
themselves, delinked from the evidence, be used for arriving at
a finding that the accused had committed the offence.”
34.1 Considering the aforesaid principles explained by the
Supreme Court, it could necessarily be inferred that a
suggestion made to a witness and the answer to the same
would form part of the evidence on record. Those suggestions
can be taken into consideration while determining whether the
reply given was believable or not.
35. At the cost of repetition, we again reiterate the
suggestions made by the defence counsel in the cross-
examination of the PW 2, Lilaben, Exh.11 and PW 4, Gamarsing
Raisingbhai, Exh.13.
Page 33 of 54

36. In the cross-examination of the PW 2, Lilaben, the
question was as under:
Q. Is it true that after the knife was inflicted you raised
shouts and thereafter your brother-in-law came running?
A. It is true that after the knife was inflicted, I raised shouts
and thereafter my brother-in-law came running.
Q. When Tarju, the accused, had come to your house, what
type of clothes were worn by him?
A. When the accused Tarju had come to our house, he had
worn a lungi and his other part of the body was not
covered. The colour of the lungi was somewhat reddish.
Q. A question is put to the witness that the accused had not
worn a lungi of red colour but of some other colour.
A. The accused had worn a lungi of reddish colour.
37. In the evidence of the PW 4, Gamarsing, Exh.13, the
following suggestions were made in the cross-examination.
Q. Is it true that when you reached the house of Kesariya at
Page 34 of 54

that point of time the assailant Tarju had ran away?
A. It is not true that when I reached the house of Kesariya
the assailant Tarju had ran away from the place.
Q. After the incident on shouts being raised, Tarju ran away
with a knife in his hand?
A. It is true that after the incident on shouts being raised,
Tarju ran away with a knife in his hand. At that time, my
brother Nagesinh, Chensinh, Prakash and his wife and my
other nephews arrived at the place of occurrence.
In view of the above, the suggestion made by the
defence in the cross-examination lends assurance to the
prosecution case.
38. 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
Page 35 of 54

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 eye witnesses 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 eye witnesses, the reply to those establishing
the presence of the accused at the house of the deceased in
the night hours with a knife. 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.
39. In the present case, it is evident from the line of cross-
examination that the defence counsel wanted to establish that
the PW 4, Gamarsing, was not an eye witness to the incident
Page 36 of 54

as he had reached the house of the deceased only after the
assault was completed but in the process made such
suggestions to the witness the answers to those fully
establishes the presence of the accused at the time of the
incident. If that be so, it would not lie in the mouth of the
accused to say that such suggestions could be a blunder or a
mistake on the part of his counsel and would not bind him in
any manner. The accused cannot disown his counsel on the
principle that in a criminal case a lawyer appears to defend the
accused and has no implied authority to make admissions
against his client during the progress of the litigation.
Ordinarily, the defence counsel would first discuss the matter
with the accused and obtain instructions to get a fair idea as to
how the incident had occurred and then chalk out the line of
defence. In the present case, a specific question by way of a
suggestion was made to the witness as regards the colour of
lungi worn by the accused at the time of incident. According to
the witness, the lungi was of reddish colour whereas a
suggestion was made that the lungi was not read in colour but
was of some other colour. What could be the basis of such a
suggestion. It is only the accused who could have personal
knowledge of the colour of lungi and perhaps having discussed
about the same with the counsel, the question in the form of a
Page 37 of 54

suggestion was made to the witness. Otherwise, how the
defence counsel know that the accused had not worn a lung of
reddish colour but of some other colour. If after obtaining such
instruction from the accused suggestions are made to the
witness by the advocate then it could not be said that such
suggestions were not binding to the accused and the same
were a part of the defence strategy. Take for instance,
ordinarily the defence counsel would brief his client i.e. the
accused to give a particular reply to the question put to him in
his further statement recorded under Section 313 of the
Criminal Procedure Code. If to a particular question an answer
is given by the accused incriminating himself then could be get
out of the same by submitting that his counsel had asked him
to give such a reply which, if incriminating in any manner,
would not bind him.
40. 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 postmortem report by examining
the doctor. The accused cannot admit the contents of the
Page 38 of 54

postmortem 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.
41. 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.
42. 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. It is a matter of common experience that many a
times the defence lawyers are themselves getting clarified
most of the discrepancies arising during the cross-
examination in one paragraph and they are 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. At this
stage, we may quote with profit the observations made by a
Division Bench of the Madhya Pradesh High Court in the case
Page 39 of 54

of Govind v. State of Madhya Pradesh reported in 2005
Cri.LJ 1244. The Bench observed in paragraph 27 as under:
“27. The main object of cross-examination is to find out the

truth and detection of falsehood in human testimony. It is
designed either to destroy or weaken the force of evidence a
witness has already given in the person or elicit something in
favour of the party which he has not stated or to discredit him
by showing from his past history and present demeanour that
he is unworthy of credit. It should be remembered that cross-
examination is a duty, a lawyer owes to his clients and is not a
matter of great personal glory and fame. It should always be
remembered that justice must not be defeated by improper
cross-examination. A lawyer owes a duty to himself that it is
the most difficult art. However, he may fail in the result but
fairness is one of the great elements of advocacy. Talents and
genius are not aimed at self-glorification but it should be to
establish truth, to detect falsehood, to uphold right and just
and to expose wrongdoings of a dishonest witness. It is the
most efficacious test to discover the truth. Cross-examination
exposes bias, detects falsehood and shows mental and moral
condition of the witnesses and whether a witness is actuated
by proper motive or whether he is actuated by enmity towards
his adversaries. Cross-examination is commonly esteemed the
severest test of an advocate's skill and perhaps it demands
beyond any other of his duties exercise of his ingenuity. There
is a great difficulty in conducting cross-examination with
creditable skill. It is undoubtedly a great intellectual effort.
Sometimes cross-examination assumes unnecessary length,
the Court has power to control the cross-examination in such
cases. (See Wrottescey on cross-examination of witnesses).The
Court must also ensure that cross-examination is not made a
Page 40 of 54

means of harassment or causing humiliation to the victim of

crime (See State of Punjab v. Gurmit Singh 1996 SCC (Cri) 316 :
(1996 Cri LJ 1728).”
43. 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, 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.
44. 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
Page 41 of 54

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 this context, we may quote with profit a
Division Bench decision of the Bombay High Court in the case
of Rajesh Namdeo Mhatre v. State of Maharashtra
reported in 2002 (4) Mh.L.J.266, wherein Their Lordships of
Page 42 of 54

the Bombay High Court had the occasion to consider the value
of a suggestion made to a witness in the cross-examination by
the defence. In the said case, Their Lordships were dealing
with a criminal appeal against the judgment and order of
conviction passed by the Additional Sessions Judge, Greater
Bombay, for the offences punishable under Section 376 (2) (g)
read with Section 34, Section 506 read with Section 34 and
Section 366 read with Section 34 of the Indian Penal Code.
The case of the prosecution was that the prosecutrix was
raped on a terrace. It appears that the defence in the cross-
examination of the prosecutrix, probably to support their
alternative case of consent, elicited certain answers to the
questions in the form of suggestions made to the witness.
During the course of hearing of the appeal, it was argued by
the learned Assistant Public Prosecutor relying upon the
suggestions made to the prosecutrix in the cross-examination
that the presence of the prosecutrix and the accused persons
on the terrace stood proved. As against such an argument, it
was submitted on behalf of the defence counsel that the
suggestions put in the cross-examination are no evidence at all
against the accused persons and the prosecution cannot use
them to fill in the gap in the evidence of the prosecution. Their
Lordships dealt with such submission observing thus:
Page 43 of 54

“20. Mr. Singhal, learned Assistant Public prosecutor also

placed reliance upon the suggestion made to the prosecutrix in
the cross-examination by the defence to say that the presence
of the prosecutrix and the accused persons on the terrace
thereby stands proved. Mr. Panna, however, in opposition,
submitted that the suggestions put in the cross-examination
are no evidence at all against the accused persons and the
prosecution cannot use them to fill in the gap in the evidence of
the prosecution. In support, he placed reliance on the decision
of this Court in the case of Radhesham s/o Govardhan Bhagat v.
The State of Maharashtra reported in 2000 ALL MR (Cri)) 52. In
the report, this Court in para 22 held thus:
"Moreover, the suggestions made in the cross

examination of the prosecution witnesses cannot be used
to fill in the gaps in the evidence of the prosecution.
Burden lies on the prosecution to prove guilt, of the
accused".
21. It is true that the prosecution must stand or fall on its own
legs and it cannot derive any strength from the weakness of
the defence as held by the Apex Court in Sharad B. Sarda v.
State of Maharashtra. In para 150 of the report, the Apex Court
has made reference to the consistent view taken in various
judgments that where various links in the chain are in
themselves complete then false plea or a false defence may be
called into aid only to lend assurance to the Court. In other
words, before using the additional links it must be proved that
all the links in the chain are complete and do not suffer from
any infirmity. It is not the law that where there is any infirmity
or lacuna in the prosecution case, the same could be cured or
supplied by a false defence or plea which is not accepted by
the Court. In the light of the observations made by the Apex
Court in the case of Sharad Sarda, (supra) we are of the view,
that though the suggestion made in the cross-examination is
not evidence but certainly they may be called into aid only to
lend assurance to the prosecution case, particularly when other
Page 44 of 54

evidence establishes the guilt of the accused. We have already

observed that the evidence of P.W. 1 stands corroborated by
F.I.R. as also the evidence of P.Ws. 3 and 4 on all material
points. In view thereof the suggestion made by the defence
could be used to lend assurance to the prosecution case. The
observations made by the Supreme Court while appreciating
the evidence in the case of Rakesh Kumar alias Babli v. State of
Haryana are worth noting. The Apex Court in para 9 of the
report held thus :
"In his cross-examination, P.W. 4, Sube Singh, stated that

the accused Dharam Vir, was wearing a shirt of white
colour. It was suggested to him on behalf of the accused
that Dharam Vir was wearing a shirt of cream colour. In
answer to that suggestion, P.W. 4 said "It is not correct
that Dharam Vir accused was wearing a shirt of cream
colour and not a white colour at that time." The learned
Sessions Judge has rightly observed that the above
suggestion at least proves the presence of accused
Dharam Vir, on the spot at the time of occurrence."
In view of this, we have no hesitation in holding that the

suggestion made by the defence in the cross-examination lend
assurance to the prosecution case.
22. The defence in the cross-examination of the prosecutrix,

probably to support their alternative, case of consent, elicited
the following answers to the questions in the form of
suggestions made to the witness :
"It is not correct to say that on the date of the incident, also I
voluntarily accompanied the two persons with a view to earn
an extra money. It is not correct to say that those two persons
did not threaten me and intimated and forcibly took me to the
terrace."
"It is not correct to say that I, voluntarily slept on the terrace
Page 45 of 54

and offered myself for sexual intercourse. I was made to sleep

near the tank of water. There were some scratches on my back.
It is not correct to say that on my own I ran down to the terrace
and went to the R.C.F. police chowky. I narrated the incident to
the R.C.F. Police chowky."
The prosecution mainly placed reliance on the aforesaid

suggestions made in support of their case. These suggestions,
in our view, lend assurance to the prosecution case.”
44.1 For the aforenoted reasons, we respectfully disagree with
the views expressed by the Division Bench of this Court in Koli
Trikam Jivraj (supra) and propose to follow the subsequent
decisions of the Supreme Court so far as suggestions and its
evidentiary value is concerned.
45. We have also noticed one another aspect which deserves
consideration. The PW 4, Gamarsing, in his evidence, Exh.13,
has deposed that the PW 2, Lilaben, wife of his brother, had
raised shouts stating “Tarju is beating my husband”. This
witness has deposed that he heard such shouts raised by his
sister-in-law, Lilaben, and on hearing such shouts he
immediately ran at the house of his brother and saw the
accused wielding knife towards him. He also deposed that, by
the time he reached, the accused had already inflicted injuries
on the neck of his brother. This part of the evidence of the PW
4, Gamarsing is corroborated by the evidence of the PW 2,
Page 46 of 54

Lilaben in her evidence Exh.11. She has deposed that on
raising the shouts her brother-in-law Gamarsing came running
at their house.
46. The reason for referring to such a piece of evidence is
that the PW 4, Gamarsing, Exh.13, could be termed as a res
gestae witness. This principle of res gestae is embodied in
Section 6 of the Evidence Act.
“6. Relevancy of facts forming part of same transaction.-

Facts which, though not in issue, are so connected with a fact
in issue as to form part of the same transaction, are relevant,
whether they occurred at the same time and place or at
different times and place.”
47. In the case of Sukhar v/s. State of U.P., (1999)9 SCC
507, the Supreme Court noticed the position of law with
regard to Section 6 of the Evidence Act thus :
“6. Section 6 of the Evidence Act is an exception to the general

rule whereunder the hearsay evidence becomes admissible.
But for bringing such hearsay evidence within the provisions of
Section 6, what is required to be established is that it must be
almost contemporaneous with the acts and there should not be
an interval which would allow fabrication. The statements
sought to be admitted, therefore, as forming part of res gestae,
must have been made contemporaneously with the acts or
immediately thereafter. The aforesaid rule as it is stated in
Page 47 of 54

Wigmore's Evidence Act reads thus :
"Under the present exception [to hearsay] an utterance is by

hypothesis, offered as an assertion to evidence the fact
asserted (for example that a car-brake was set or not set), and
the only condition is that it shall have been made
spontaneously, i.e. as the natural effusion of a state of
excitement. Now this state of excitement may well continue to
exist after the exciting fact has ended. The declaration,
therefore, may be admissible even though subsequent to the
occurrence, provided, it is near enough in time to allow the
assumption that the exciting influence continued."
Sarkar on Evidence (Fifteenth Edition) summaries the law

relating to applicability of Section 6 of the Evidence Act thus :
"1. The declarations (oral or written) must relate to the act
which is in issue or relevant thereto; they are not admissible
merely because they accompany an act. Moreover the
declarations must relate to and explain the fact they
accompany, and not independent facts previous or subsequent
thereto unless such facts are part of a transaction which is
continuous.
2. The declarations must be substantially contemporaneous

with the fact and not merely the narrative of a past.
3. The declaration and the act may be by the same person, or

they may be by different persons, e.g., the declarations of the
victim, assailant and bystanders. In conspiracy, riot, the
declarations of all concerned in the common object are
admissible.
4. Though admissible to explain or corroborate, or to
understand the significance of the act, declarations are not
Page 48 of 54

evidence of the truth of the matters stated.”
48. The rule embodied in Section 6 is usually known as the
rule of res gestae. What it means is that a fact which, though
not in issue, is so connected with the fact in issue “as to form
part of the same transaction” becomes relevant by itself. To
form particular statement as part of the same transaction
utterances must be simultaneous with the incident or
substantial contemporaneous that is made either during or
immediately before or after its occurrence. Sections 6 and 7 of
the Evidence Act, in the facts and circumstances of the case,
insofar as admissibility of a statement of the PW 4, Gamarsing
hearing the shouts of the PW 2, Lilaben that her husband is
being beaten by the accused and admitted by the PW 2,
Lilaben in her evidence, would be attracted with all its rigour.
49. We have also taken note of one more incriminating piece
of circumstance and that is the presence of blood stains on the
lungi which was worn by the accused at the time of the
incident. According to the serological test report the lungi had
blood stains of human blood. However, the blood group could
not be determined. So far as this piece of circumstance is
concerned, the accused has tried to explain in his further
statement recorded by the Court under Section 313 of the
Page 49 of 54

Criminal Procedure Code that since he was engaged in
agricultural operations such stains may have been there on the
lungi. Such explanation is absolutely false in light of the other
circumstances and evidence on record.
50. We have also noticed that although all the incriminating
circumstances which point to the guilt of the accused had been
put to him, yet he chose not to give any explanation under
Section 313 of the Criminal Procedure Code except choosing
the mode of denial. It is well settled law that when the
attention of the accused is drawn to the circumstances that
inculpated him in the crime and he fails to offer appropriate
explanation or gives a false answer, the same can be counted
as providing the missing link for building the chain of
circumstances. In the case at hand though the number of
circumstances were put to the accused, yet he has made a
bald denial and did not offer any explanation whatsoever.
Thus, it is also a circumstance that goes against him. (See
Harivadan Babubhai Patel v. State of Gujarat [(2013) 7 SCC
45].
51. It appears from the evidence on record that during the
course of investigation the accused expressed his willingness
to point out the place where he had hidden the weapon of
Page 50 of 54

offence, namely, the knife. So far as the discovery part is
concerned, the panch witnesses turned hostile and although
the investigating officer although has deposed about drawing
of such discovery panchnama of the muddamal article knife
yet failed to prove the contents of the panchnama. It is now
well settled that even if the panch witnesses for any reason
fails to support the case of the prosecution and are declared
hostile the evidence of the investigating officer could be relied
upon but the condition precedent is that the investigating
officer is obliged to prove the contents of the entire discovery
panchnama. In the present case, except deposing about
drawing of such a panchnama, he has not proved the contents
of the panchnama. He has also not deposed as regards exact
statement made by the accused while in police custody which
led to the discovery of the incriminating fact, namely, the
weapon of offence.
52. It is necessary to take cognizance of the fact that even on
the weapon of offence i.e. the knife, blood was found,
according to the serological test report. However, the blood
group could not be determined and in the same manner, the
blood was also found on the cover of the knife but the blood
group was not determined.
Page 51 of 54

53. In this context, we may usefully refer to the decision of
the Supreme Court in A.N.Venkatesh v. State of Karnataka
reported in (2005) 7 SCC 714, wherein it has been ruled that:
“9. By virtue of Section 8 of the Evidence Act, the conduct of

the accused person is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact. The evidence
of the circumstance, simpliciter, that the accused pointed out
to the police officer, the place where the dead body of the
kidnapped body was found .... would be admissible as conduct
under Section 8 irrespective of the fact whether the statement
made by the accused contemporaneously with or antecedent to
such conduct falls within the purview of Section 27 [of the
Evidence Act] or not.....”
53.1 In the said decision reliance was placed on the principle
laid down by the Supreme Court in Prakash Chand v. State
(Delhi Administration) reported in (1979) 3 SCC 90. In the
said case, there was material on record that the accused had
taken the investigating officer to the spot and pointed out the
place where the dead body was buried and the Supreme Court
treated the same as admissible piece of evidence under
Section 8 of the Act as the conduct of the accused.
54. In the case at hand, the factum of information related to
the discovery of the knife, although from an open place
accessible to all yet was within the special knowledge of the
Page 52 of 54

present appellant, hence, the doctrine of confirmation by
subsequent events is attracted and, therefore, we have no
hesitation in holding that the recovery or discovery in the case
at hand is an event, fact or material which can be relied upon
and has been correctly relied upon by the trial Court along with
other evidence.
55. In this context, we may quote with profit the observations
made by the Supreme Court in Mohmed Inayatullah v. The
State of Maharashtra reported in (1976) 1 SCC 828:
“13. At one time it was held that the expression “fact

discovered” in the section is restricted to a physical or material
fact which can be perceived by the senses, and that it does not
include a mental fact [see Sukhan v. Crown(AIR 1929 Lah 344);
Rex v. Ganee (AIR 1932 Bom 286). Now it is fairly settled that
the expression “fact discovered” includes not only the physical
object produced, but also the place from which it is produced
and the knowledge of the accused as to this [see Palukuri
Kotayya v. Emperor (AIR 1947 PC 67); Udai Bhan v. State of
Uttar Pradesh (AIR 1962 SC 1116)]”
56. For the foregoing reasons, we do not find any merit in
this appeal and the same is accordingly dismissed. The order
of conviction and sentence, imposed by the Additional Sessions
Judge against the appellant, is hereby confirmed.
Page 53 of 54

(BHASKAR BHATTACHARYA, CJ.)
(J.B.PARDIWALA, J.)
*malek
Page 54 of 54

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R/CR.

A/2083/2008 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL NO. 2083 of 2008

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the No

4 Whether this case involves a substantial question of law as No

5 Whether it is to be circulated to the civil judge ? No

CORAM: HONOURABLE THE CHIEF JUSTICE MR.

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1. The present appeal is at the instance of a convict

accused for the offence punishable under Section 302 of the

Indian Penal Code and is directed against an order of

conviction and sentence dated 15 th July 2008 passed by the

learned Additional Sessions Judge, Fast Track Court No.3,

Chhota Udepur, in Sessions Case No.23 of 2008.

2. By the aforesaid order, the learned Additional Sessions

found the appellant guilty of the offence punishable under

Section 302 of the Indian Penal Code and consequently

sentenced him to suffer life imprisonment with a fine of

Rs.10,000/- and in default of payment of fine further rigorous

imprisonment for the period of one year.

3. In absence of any evidence to establish the charge of

Section 504 of the Indian Penal Code, the accused-appellant

was acquitted of the offence punishable under Section 504 of

the Indian Penal Code as well as of the one punishable under

Section 135 of the Bombay Police Act as the prosecution failed

to prove that on the date of the commission of offence there

was a notification issued by the District Magistrate prohibiting

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possession of a knife used in the commission of the offence.

4. CASE OF THE PROSECUTION:-

4.1 On 16th December 2007 at around 3 O' Clock in the

afternoon the deceased and the accused together had gone to

the agricultural field for carrying out agricultural operations. In

the evening at around 7 O' Clock while both were returning

home together there was an altercation between the two. The

wife of the deceased namely Lilaben apprehending that the

accused might assault her husband intervened and brought

the deceased along with her at home. After completing dinner

when the deceased and his wife Lilaben were preparing to go

to sleep, the accused came shouting at their house and broke

opened the door of the house by giving a kick blow. The

accused thereafter demanded money from the deceased to

consume liquor. The deceased refused to give money to the

accused as a result of which the accused pounced on the

deceased while the deceased was in a sleeping posture and

saying why he refused to give him money, inflicted injuries on

the neck of the deceased with a knife leaving the deceased in

a pool of blood. The wife of the deceased raised shouts for

help and on hearing her shouts the brother of the deceased

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named Gamarsing residing in the adjoining house came

accused thereafter went away from the house of the deceased.

Immediately after the incident the wife of the deceased went

to the Quant Police Station and lodged a First Information

4.2 On the strength of the FIR lodged by the wife of the

deceased, the investigation commenced. The inquest

panchnama-Exh.15 was drawn in presence of the two panch

witnesses. The dead body of the deceased was sent for

postmortem examination and the postmortem revealed that