Jojy George Koduvath.

Overview

• 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.

Suggestion in Cross-Examination Cannot Be Used As Evidence; But, It May Aid

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 thebona 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 and Admissions 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 serious as in a criminal case (for there are pleadings). It appears that it is not the correct proposition of law.

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.”

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.”

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.