Balu Sudam Khalde & Anr. vs The State of Maharashtra

Oral Evidence – Evidentiary value of – Held: Appreciation of ocular evidence is a hard task – There is no fixed or straightjacket formula for appreciation of the ocular evidence – In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. Cross-examination – Concession or admission of fact by defence counsel – Nature – of – Held: 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 – Thus, the suggestion made by the defence counsel to a witness in the crossexamination if found to be incriminating in nature in any manner would definitely bind the accused – 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. Doctrines/Principles: Principle of Res Gestae – Rule of – Held: Rule embodied in s. 6 is usually known as the rule of res gestae – It means 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 – Evidence Act, 1872 – ss.6 and 7.

Dismissing the appeal, the Court

HELD: 1.1 The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. [Para 25][865-E]

1.2 In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence. [Para 27][868-C-E]

1.3 The oral evidence of all the three eyewitnesses PW 1, 2, 3 is consistent and there is no good reason for the Court to disbelieve the ocular version as narrated by the three eyewitnesses. The trial court as well as the High Court looked into the oral evidence of all the three eyewitnesses closely and have recorded a concurrent finding that they are reliable witnesses. [Para 28][868-F-G]

1.4 In the exercise of the power under Article 136 of the Constitution of India, this Court, normally would not interfere with the concurrent findings of fact, except in very special circumstances or in the case of a gross error committed by the courts below. Only where the High Court ignores or overlooks “crying circumstances” and “proven facts” or “violates and misapplies well established principles of criminal jurisprudence” or refuses to give benefit of doubt to the accused persons, etc., would this Court step in to correct the legally erroneous decisions. Interferance is not only for the reason that this Court may arrive at a different conclusion, unless, there are compelling circumstances to tinker with conclusions drawn and that the accused were innocent/guilty. There are limitations in interfering with the findings of conviction, concurrent in nature. [Para 30][871-C-E]

1.5 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. 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. The submission 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 cannot be accepted. [Para 38, 39][873-B-D]

1.6 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. This Court is 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. In the instant case, the conclusion is reached 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, to fortify the view the suggestions made by the defence counsel to the eyewitnesses can be looked into, 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 happened in the instant case. [Para 40][873-E-H; 874-A]

1.7 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. 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. Therefore, the 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. [Para 41, 42][874-B-D]

1.8 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 crossexamination is always on the basis of the defence which the counsel would keep in mind to defend the accused. [Para 43][874E]

1.9 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. However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. [Para 44, 45][875F-G]

1.10 In the cross-examination of the PW-3 a suggestion was put to him that he had inquired with PW-1 as to what had happened and PW-1 in turn narrated the incident to PW-3. This suggestion put by the defence counsel to the PW-3 was answered in the affirmative. This part of the evidence of the PW-3 is corroborated by the evidence of the PW-1. The reason for referring to the said a piece of evidence is that the PW 3 could be termed as a res gestae witness. This principle of res gestae is embodied in Section 6 of the Act 1872. 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 Act 1872 in the facts and circumstances of the case, in so far as, the admissibility of a statement of the PW-3 coming to know about incident, immediately from the PW-1 that AB had been seriously assaulted and that PW-1 had also suffered injuries and admitted by the PW-1 in his evidence would be attracted with all its rigour. [Paras 46, 47, 49 and 50][876-E-G; 877-A; 878-D-F]

1.11 There is no dispute that the death of the deceased occurred due to culpable homicide and not due to accident or suicide. The sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder. Therefore, it is assumed that this would be a case of murder and it is for the accused to show the applicability of the Exception. [Para 57][890-E]

1.12 The extent of injuries suffered by the deceased is noticed, as it appears from the deposition of the PW 7 who carried out the post mortem. Having regard to the nature of the injuries caused by dangerous weapons like sickle and sword which, were applied on the vital part of the body, there is no escape from the conclusion that it is a case of Section 302 IPC.[Para 60][891-BC]

1.13 The submission that the case would fall within the Exception 4 to Section 300 IPC and such benefit be extended to the accused cannot be accepted. Assuming for the moment that the incident had occurred in the heat of the moment and fight was also sudden, the fact that the appellants inflicted as many as nine blows with a dangerous weapon on the deceased who was unarmed and was helpless should not be overlooked. For cases to fall within clause (3) of Section 300 IPC, it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Thus, no case is made out by the appellants to interfere with the impugned judgment and order of the High Court. [Para 61, 62][891-C-F]

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753 : [1983] 3 SCR 280; Leela Ram v. State of Haryana AIR 1995 SC 3717; Tahsildar Singh v. State of UP AIR 1959 SC 1012 : [1959] Suppl. SCR 875 – relied on.

Rakesh Kumar alias Babli v. State of Haryana (1987) 2 SCC 34; Tarun Bora alias Alok Hazarika v. State of Assam 2002 Cri. LJ 4076; Rajwant Singh v. State of Kerala AIR 1966 SC 1874 : [1966] Suppl. SCR 230; State of Andhra Pradesh v. Rayavarapu Punnayya and Another (1976) 4 SCC 382 : [1977] 1 SCR 601; Sukhar v. State of U.P. (1999) 9 SCC 507 : [1999] 3 Suppl. SCR 314; Govind s/o Soneram v. State of M.P. (DB) 2005 Cri.LJ 1244; Parkash Chand v. State of Himachal Pradesh (2004) 11 SCC 381 : [2004] 3 Suppl. SCR

389 – referred to.