Taken from: Appreciation of Evidence by Court

Jojy George Koduvath.

Overview

• Effect of non-cross-examination of a witness (on a point in chief examination) is that that statement is taken as undisputed or accepted.
• A party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings.
• In criminal cases, the case of the accused (similar to pleading in civil cases) is put on record by way of suggestions to the (concerned) prosecution witnesses. (Note – all suggestions may not give such an out-turn.)
• Suggestions in cross examination, if not admitted by the witness, are no evidence.
• Suggestion made by a counsel in the cross-examination will definitely bind his party. Whole case must be apprised for arriving at such an inference.
• Probative value of evidence of a person died after examination in chief (not cross-examined) depends upon the facts of the case.
• Probative value of evidence of a witness – partly cross examined, depends upon the facts of the case.
• Probative value of document marked without objection may be nil.

Effect of “No Effective Cross-Examination” (on Execution of sale deed)

Our Apex Court considered the effect of “no effective cross-examination” with respect to factum of execution of sale deed spoken to by a witness, in Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250 (Followed in: Arvind Singh v. State of Maharashtra, AIR 2020 SC 2451, 2021-11 SCC 1). It was held in this decision –

• Cross-examination is a matter of substance, not of procedure one.
• A party is required to put his own version in cross-examination of opponent.
• The effect of non-cross-examination is that the statement of witness has not been disputed.
• Court may repel a submission – on the ground that same was not put either to the witnesses, or suggested before the courts below (referred to: Bhoju Mandal v. Debnath Bhagat, AIR 1963 SC 1906).
• If no such questions are put, the court would presume that the witness account has been accepted (referred: M/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., AIR 1958 Punjab 440.)
• In Maroti Bansi Teli v. Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established.
• The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of opposite party.
• The rule of putting one’s version in cross-examination is one of essential justice and not merely technical one.
• In Kuwarlal Amritlal v. Rekhlal Koduram, AIR 1950 Nagpur 83, has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested.
• If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines.
• In Karnidan Sarda v. Sailaja Kanta Mitra, AIR 1940 Patna 683, has laid down that it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted.

Effect of NOT Challenging Validity of a deed in Cross Examination

When a deed is duly proved in the trial by the evidence of a witness, and the legality or validity of the same is not challenged in the cross examination, the court will act upon the deed as a legal and valid one (Atluri Brahmanandam v. Anne Sai Bapuji,  2013-4 SCC 97 : AIR 2013 SC 1204).

Effect of Not Cross-Examining a Witness (on a point)

Lord Herschell, L.C. in Browne vs. Dunn [(1893) 6 The Reports 67] clearly elucidates the principle underlying those provisions. It reads thus:

• “I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses”. (Quoted in State of UP v. Nahar Sing,  1998-3 SCC 561.)

The effect of not cross-examining a witness, on a particular point, has been considered by the Supreme Court, in Laxmibai v. Bhagwantbuva, AIR 2013 SC 1204. It is observed as under:

• “31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Sec. 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Sec. 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.”

In State of UP v. Nahar Sing,  1998-3 SCC 561, a criminal case, the Supreme Court observed as under:

• “13. It may be noted here that that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence PW-1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:
  • to test his veracity.
  • to discover who he is and what is his position in life, or
  • to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

Effect of marking a document without formal proof on admission (or without objection) is a subject of controversy.

Read Blog: Admission of Documents in Evidence on ‘Admission’

Value of Evidence of Witness Untested (for death) by Cross-Examination

Andhra High Court (SB Sinha, CJ, as he then was) in Somagutta Sivasankara Reddy v. Palapandla Chinna Gangappa, 2002 Supp1 ALD 600, 2002-1 Andh WR 475, held that the evidence of a person who had died after examination in chief and could not be cross-examined, the weight or probative value of his evidence would vary from case to case and in a given case it could be disregarded.

In Anamika Pranav v. Anil Kumar Choudhary, 8 Feb, 2023, Patna High Court (Sunil Dutta Mishra, J.), it was held that the evidence of a witness untested by cross-examination can have no value but the evidence cannot be rejected as inadmissible. It is held as under:

• “The correct rule is that the evidence is admissible but the weight to be attached to such evidence should depend on the circumstances of each case and that though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded. The Court should look at the evidence carefully to see whether there are indications that by a complete cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. If the evidence is inadmissible the Court is not entitled to consider it at all whereas if it admissible the Court must decide on the circumstances of each case whether any weight should be attached to it or not.”

The Single Judge followed the following decisions:

• Mt. Horil Kuer v. Rajab Ali, AIR 1936 Pat 34
• Srikishun Jhunjhunwalla v. Emperor, AIR 1946 Pat 384
• Ahmad Ali v. Joti Prasad,AIR 1944 All. 188
• Srikumar Mukherjee v. Avijit Mukherjee, 2015 SCC Online Cal. 6445.

Effect of Part Cross-Examination

In a civil case where there is no pleading as to fraud as to a document, it is not material that the party did not get an opportunity to cross-examine the witness through whom it was marked. In Dever Park Builders Pvt. Ltd. v.  Smt. Madhuri Jalan, AIR 2003 Cal 55, the witness was partly cross examined. It is held as under:

• “19. …. I find here a portion of the examination-in-chief has been cross-examined and such portion in my view should be absolutely admissible in evidence and be considered without any hesitation by the learned Judge at the time of hearing and deciding of the suit. Cross-examination is essentially needed to bring out the truth of the oral testimony, but in case of documentary evidence where there is no suggestion or pleading as to fraud and forgery the cross-examination hardly matters.
• 20. Therefore, I am unable to accept the argument of Mr. Dutt that the evidence of the deceased defendant shall be expunged and/or rejected altogether. It shall be considered and how much weight shall be attached should be decided considering the other facts and circumstances surrounding it. So the earlier order passed by me expunging the evidence of deceased defendant is recalled and the document and evidence already received in commission shall now be admitted as records of this case. Parties would be at liberty to use any of the exhibited documents.”

Prosecution Must Stand on Its Own Legs; Not on Weakness of Defence

Prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence (Sharad B. Sarda v. State of Maharashtra, (1984) 4 SCC 116; AIR 1984 SC 1622).

The Apex Court also observed that though the suggestion made in the cross-examination was not evidence it certainly be called into aid to lend assurance to the prosecution case, particularly when other evidence establishes the guilt of the accused.

Effect of NO Cross-Exam. of Witness – Taken as Unchallenged

In Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:

• “35. The main object of cross-examination is to bring out falsity and to find out the truth. Cross-examination is an art. It would help the Court to assess the relative merits of the case projected by the parties. Matter of cross-examination is not a mere empty formality, but one is required to put its own case in cross-examination, otherwise deposition of the witness has to be taken as unchallenged. The matter has been considered in a number of decisions that it is the duty to put ones own version to opponent in cross-examination, otherwise deposition of the witness cannot be discredited as was held in Maroti Bansi Teli v. Radhabai, AIR 1945 Nag 60: 1944 NLJ 492. In Chunni Lal Dwarka Nath v. Hartford Fire Insurance Co.Ltd., AIR 1958 Punj 440 it has been held as under:
  • ” It is well established rule of evidence that a party should put to each of his opponent’s witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness’s account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation.”

Referring Jesu Asir Singh v. State, (2007) 12 SCC 19 : AIR 2007 SC 3015, it is held in Muneem Ahmad v. State of U. P.,  2017-171 AIC 895, 2017-98 All CriC 405, that the question put in the cross-examination to a great extent probabilise the prosecution version; and that, though questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant.

Effect of NO Cross-Exam. of Witness – Taken as Afterthought

In Mehra v. State of Rajasthan, AIR 1957 SC 369 Yusuf Ali v. State of Maharashtra, AIR 1968 SC 147 it was held that when the accused did not suggest to prosecution witnesses in cross-examination indicating his defence, it was held that the defence version may be rejected as an afterthought. (Referred to in: Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407)

It is permissible for the accused to take more than one defence

It is an accepted principle that it is permissible for the accused to take more than one defence in a criminal case. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness (especially when it is not admitted by the witness) would not amount to an admission on the part of the accused.

But, it may not be the same result, in civil cases.

It is Permissible to take more than one defence in cases of Rape

In Tarjubhai Narsingbhai Rathwa v. State of Gujarat, (J.B. Pardiwala, J.) 2014-1 GLH 781, 2014-2 GLR 943, 2014-36 GHJ 282, 2014-6 RCR(Cri) 297, though it is observed that it is permissible for the accused to take more than one defence in cases of rape, it is further pointed out as under:

• “33. 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 views expressed by Their Lordships of this Court in Koli Trikam Jivraj v. The State of Guj.,  1969 CrLJ  409, AIR 1969 Guj 69. 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.”

It is also held as under:

• “43. … 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.”

Suggestions in Cross Examination to Witnesses

• Concession or Admission of a fact by a defence counsel would bind on his client.
• Suggestions in cross examination, by itself, are no evidence.
• In criminal trials, suggestions in cross examination may take the position as ‘pleadings’ in civil cases.
• In a civil trial it is not required to put its case to the witness, as pleadings already exists.
• Probative value of suggestion and admission in cross-examination varies depending on the facts of each case.
• There being well defined pleadings in civil cases, the suggestion or admission in cross-examination (by the advocate) has no importance as that in a criminal case.

It appears that the acceptable view is that laid down in Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407. It is held:

• Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused
• but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.

In Mahavir v. State of Uttar Pradesh, 2017-3 All Cri R 2407, it is held as under:

• 36. The suggestion made in cross-examination form part of the evidence on record. Those suggestion can be taken into consideration while determining whether the reply given was believable or not. Though suggestion in cross-examination which is denied by the witness, is not evidence at all. Any suggestion made in the cross-examination of the prosecution witness by the defence, can not be used as an evidence against the accused but at the same time it can be called in aid when the other evidence establishes the guilt of the accused.
• 37. Though the suggestion made in the cross-examination is not evidence but certainly the same may be called into aid to lend assurance to the prosecution case particularly when other evidence establishes the guilt of the accused.”

The Kerala High Court, in A. K. Ali v. C. H. Mammuty, 1989 CrLJ 1820, opined that a suggestion made in the cross examination of witnesses though not binding on the accused as admissions, those suggestions in cross examination and statements of the accused given when questioned under S.313 could be taken into account for ascertaining the bona fides of the contentions.   

But, in Khimjibhai Kurjibhai  v. The State of Gujarat, 1982 CrLR (Guj), it is held that the suggestion in cross examination are no evidence. It appears that this view has not been followed later on.

Suggestions in Cross Examination to Witnesses – in Civil Cases

In Srichand and Shivan Das v. The State, 1985-28 DLT 360, the Delhi High Court held as under:

• “6…. The law is well settled that where the evidence of a witness is allowed to go unchallenged with regard to any particular point it may safely be accepted as true ….”.

The Delhi High Court held in Sher Mohammad v. Mohan Magotra (Rajiv Sahai Endlaw, J.), 2013-202 DLT 708; 2013 SCC OnLine Del 2530, as under:

• “However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. … The purport of cross examination is to challenge the testimony and/or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings.”

The Delhi High Court, subsequently, in Sa v. Aa, 2016 SCC OnLine Del 1818 (taking note of Srichand and Shivan Das v. The State, 1985-28 DLT 360) preferred not to follow Sher Mohammad v. Mohan Magotra , 2013-202 DLT 708; 2013 SCC OnLine Del 2530, which held that non-cross examination of a witness on a suggestion will not be so seriousas in a criminal case (for there are pleadings). It appears that it is not the correct proposition of law.

Admission of Counsel Must Be Taken as a Whole

Generally speaking, 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 (Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736).

But, our Apex Court in Moran Mar Basselios Catholicos v. The Most Rev. Mar Poulose, AIR 1954 SC 526, held as regards admission of counsel, as under:

• “If it should be treated as an admission at all, it must have been accepted or rejected as a whole. It must not have been torn piecemeal and part used and part rejected.”

Suggestion or Admission in Cross-Examination –  Evidentiary Value

Suggestion and admission in cross-examination being come in ‘appreciation of evidence’, probative value of the same is a matter for the court, and it varies depending on the facts of each case. The principle involved therein is consistent – that is, truth should prevail.

There being well defined pleadings as Plaint and Written Statement in civil cases, it gets prime importance in determining the case of parities to civil cases. Therefore, the suggestion or admission in cross-examination (by the advocate) has no importance as that in a criminal case.

In Tarun Bora alias Alok Hazarika v. State of Assam, 2002-7 SCC 39; 2002 Cri. LJ 4076 (SC), the presence of the accused was admitted in a suggestion put to one of the witnesses. Considering the reply given by the witness the court arrived at the conclusion that the presence of the accused was admitted. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)

In Rakesh Kumar alias Babli v. State of Haryana, 1987-2 SCC 34, a suggestion was put by the defence to the witness with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Apex Court considering the suggestion 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. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)

In Balu Sudam Khalde v. The State of Maharashtra (Sudhanshu Dhulia, J.B. Pardiwala), AIR 2023 SC 1736, it was held as under:

• 38. 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.
• 39. 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.
• 40. 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 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 eyewitnesses 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 eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. 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.
• 41. 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 post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem 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.
• 42. 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.”
• 43. 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 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. At this stage, we may quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind v. State of M.P. 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 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 means of harassment or causing humiliation to the victim of crime [See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316].”
• 44. 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, the 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.
• 45. 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 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.”

Suggestions (in Cross Exam) BY ITSELF – Not Sufficient to Hold Accused Guilty

In Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355, our Apex Court held that  if the prosecution failed to prove its case, then it could not take advantage from the weakness of the defence, and it cannot base its case on the reply of the witnesses given to the suggestions of the defence counsel. It held as under:

• “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.”

Mere Suggestions in Cross Examination- No Evidence

The Gujarat High Court held in Umedmiya R. Rathod v. State of Gujarat (J.B. Pardiwala, J.), AIR 2017(NOC) Guj 1146 (Guj), as under:

• “It is a settled position of law that mere suggestions are not sufficient to dislodge or disprove the case of the plaintiff. Suggestions in cross examination have no evidentiary value. In absence of any evidence, nor any material traced in the cross-examination in support thereof, the findings so far could not have been answered in the affirmative by the Trial Court as well as by this Court in the First Appeal.”

In Bibhuti Bhusan Roy v. State of West Bengal,  2019 CrLJ 1140, held that mere suggestion in cross-examination unsupported by defence evidence has no evidentiary value.