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State Of Himachal Pradesh vs Sunil Kumar @ Sonu & Another on 15 November, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr. Appeal No. 13 of 2011

Reserved on : October 16 , 2019
Date of Decision : November 15th , 2019

State of Himachal Pradesh …Appellant

Versus

Sunil Kumar @ Sonu another …Respondents.

Coram:

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

The Hon’ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1 Yes.

For the appellant : Mr. Vinod Thakur, Additional Advocate General
with Mr. Bhupinder Thakur, Ms. Svaneel Jaswal

and Mr. Narender Thakur, Deputy Advocates
General for the appellant-State.

For the respondent : Mr. Ashok Kumar Thakur, Advocate, for the

complainant.

Mr. Nimish Gupta, Advocate, as Legal Aid
Counsel, for respondent No. 1.

Mr. K. S. Banyal, Senior Advocate with Mr.

Inder Rana, Advocate, for respondent No. 2.

Per : Anoop Chitkara, Judge.

Challenging the acquittal of the respondents-accused, for

culpable homicide amounting to murder, and destruction of

1
Whether reporters of Local Papers may be allowed to see the judgment?

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2

evidence, the State has come up before this Court by way of the

present criminal appeal.

.

2. The gist of the facts, apposite to arrive at a just conclusion,

traces its origin to the General Diary No. 6(A), dated 19.5.2009

(Ext.PW-22/A), recorded at 6.25 a.m., in Police Station, Dehra,

District Kangra, HP, wherein the President of Gram Panchayat

Nehran Pukhar made a telephone call to Police Station Dehra,

informing that one person is lying on the roadside at Nehran Pukhar.

On receipt of this information, ASI Mukesh Kumar (PW-27), along

with the other Police officials, reached the spot.

3. On reaching the spot, ASI Mukesh Kumar recorded the

statement of Pradeep Sharma (PW-1) under Section 154 CrPC

(Ext.PW-1/A). Pradeep informed the Police that on May 19, 2009, in

the morning at around 6 a.m., his Mausi (mother’s sister) Smt.

Santosh, made a phone call to him, and informed him that Rajeev

Sharma @ Vicky is lying on the roadside at Nehran Pukhar. Smt.

Santosh told Pradeep to visit the spot. On reaching the place,

Pradeep Sharma found Rajeev @ Vicky lying dead on the side of

the road. He also noticed injuries on his head and chest and saw

that a lot of blood had oozed out from such injuries. On seeing the

spot, Pradeep inferred that during the intervening night of May 18,

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and May 19, 2009, Rajeev met with an accident with some vehicle,

in a hit and run case.

.

4. On receipt of this information, FIR No. 60, dated 19.5.2009

(Ext. PW-18/A), under Sections 279 and 304-A of the Indian Penal Code,

1860, and Section 187 of the Motor Vehicles Act, 1988, was registered in

the file of Police Station Dehra, District Kangra, HP.

5. The Investigating Officer filled up the inquest form (Ext.

PW-3/B) and inspected the scene of crime. From the spot, Police

found one plastic flap (of some vehicle), and seized the same. The

Police also sent the dead body, along with the requisite letter, to

RPGMC Tanda, for conducting post mortem examination. In this

letter sent to Doctors, the investigating officer mentioned the

probable cause of death as a result of accidental injuries.

In RPGMC Tanda, Dr. Anita Mahajan (PW-3), under the

6.

guidance of Dr. D.P. Swami (PW-11), conducted the post mortem

examination on the body of Rajeev Sharma @ Vicky (deceased),

and gave post mortem report (Ext. PW-3/C). During post mortem

examination, the Medical Experts noticed a fracture on the skull, and

congestion in larynx and trachea, which were full of blood. The

experts also noticed smell of alcohol from the contents of the

stomach. The opinion of the Medical Officer Dr. Anita Mahajan (PW-

3) reads as follows:

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“Opinion given under the guidance of Dr. Swamy.
In my opinion the deceased died due to Asphyxia
Neurogenic Shock due to Ante mortem Head Injury

.

under circumstances of inhalation of Blood into trachea
and the possibility of death due to Accidental Injury
cannot be ruled out. However, the final opinion will be

given after report from Chemical.”

7. After the post mortem examination, the Doctors preserved

contents of the body as well as the blood, for forensic science

examination, and handed over the same to the Police. Vide report Ext.

PW-3/D, the State Forensic Science Laboratory, Junga, detected 277.93

mg% ethyl alcohol in the blood obtained from the body of Rajeev Sharma

(deceased).

8. The Police also sent the plastic flap and the blood sample for

testing, and as per report Ext. PX of State Forensic Science Laboratory,

Junga, the laboratory detected blood of group ‘AB’ in the blood sample of

the deceased as well as from the blood obtained from the plastic flap.

9. It is the case of the Prosecution that there was an agitation

by the villagers and blockage of roads, who were not satisfied with

the case registered as a result of an accident. On May 30, 2009, the

Superintendent of Police Kangra, transferred the investigation to

Subhash Shastri (PW-28), who was posted as Incharge of CIA Staff.

10. On June 10, 2009, Police got recorded the statement of

one Deepak Kumar @ Goldy (PW-4) under Section 164 CrPC in the

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Court of Additional Chief Judicial Magistrate, Dehra. This statement

of Deepak Kumar (Ext. PW-4/A) narrates the following facts:

.

(a) Deepak stated that he was not related to Rajeev Sharma
(deceased), but he knew him because he was working as a
conductor.

(b) He further stated that on May 18, 2009, in the evening at
around 6-6.30 p.m., he, along with Sonu (Accused A-1), had gone
to Dhaliara to meet their friend. On reaching there, they met

Vandana (Not examined), who told Sonu (A-1), to drop her at her
village Kasba, and on this Sonu said to her that he did not have any
vehicle. On this, Vandana brought the keys of one Trax, which was

parked there and belonged to Dinesh Sharma (Accused A-2). Then

Deepak Kumar, along with Sonu, went to drop Vandana in the said
Trax.

(c) Vandana told Sonu to drop Dinesh (A-2) at Village Sehri

because he was to be administered glucose at Dhaliara Clinic.

(d) After that, Sonu asked Dinesh that at what time he would
go, and on that, Dinesh told him to wait for 10-15 minutes. It was 7-

7.30 p.m., and then Sonu started taking alcohol at Dhaliara. After
that, Dinesh made a phone call to Sonu and asked him to leave.

Sonu (A-1) gave keys of the vehicle to Deepak and asked him to
drive. Upon this, Deepak started driving the Trax, and when they

reached Dhaliara, Rajeev (deceased) met them.

(e) At Dhaliara, Rajeev joined them and boarded the Trax.
When they reached place Nehran Pukhar, then Rajeev asked
Deepak that he would like to alight here. However, on this, Dinesh
told him that they would drop him at Sehri. However, Rajeev did not
agree and got down from the vehicle at Nehran Pukhar itself.

(f) When Rajeev alighted from the Trax, then they reversed the
vehicle, and Sonu, Dinesh and Deepak, came towards Dhaliara

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and stopped the vehicle near a Dhaba. Sonu again started taking
alcohol, and time was around 9.30 p.m. Dinesh kept on standing
near the vehicle. Then he received a phone call upon which Dinesh

.

demanded keys of the vehicle from Sonu, but he refused. On this,
Dinesh told Sonu that he has to soon leave for his home and
requested to hand over the keys to him, and on this, Dinesh went

towards Nehran Pukhar in the Trax.

(g) When the vehicle returned from Nehran Pukhar’s side, then it
was at very high speed, and Rajeev was also in the said vehicle.

The vehicle went towards Kasba, and Dinesh and Rajeev were
sitting in the vehicle, and even Sonu had seen them in the vehicle.

(h) At that time, Sonu told Deepak that they would return to their

homes. When they reached near the house of Deepak, then Sonu

demanded a stick from Deepak. He said to him that as he gets
scared at night and needs a stick. On this, Deepak handed over a
stick to him and went home.

(i) After about half an hour, Sonu again came to his house and
asked him to accompany him to work, but Deepak refused. On this,
Sonu started abusing him.

(j) Then Deepak started spying on him with a torch and followed

him. Sonu reached an Inn (Sarai), where Rajeev and Dinesh were
also there. Dinesh had caught hold of Rajeev, and Sonu had also
reached there. Both of them took Rajeev inside the Sarai and hit

him with an iron rod. After seeing this, Deepak returned to his home
and slept.

(k) The next morning Deepak made a phone call to Sonu and
informed him that Rajeev had died. Upon this, Sonu replied that
what he has to do about it. After an hour, they reached the spot
where the dead body was lying.

(l) On June 1, 2009, Sonu made a phone call to Deepak and
asked him to accompany him to Shimla. Then on June 2, 2009, he

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reached Ghaggas from where Sonu picked him up, and then both
of them reached Shimla. They stayed in Shimla for four-five days
and then returned home on June 8, 2009.

.

(m) Deepak further stated that when he reached Chowk, then
Police officials met him, and they took him to the Police station and
started interrogating them. Deepak also said that later, he disclosed

to the Police that Sonu and Dinesh killed Rajeev. Deepak further
told the Police that when Sonu and Dinesh hit Rajeev with a rod,
then Rajeev cried, due to which Deepak got scared and returned

home.

11. After recording the above statement (Ext. PW-4/A), the Police

converted the FIR from Sections 279 and 304-A of IPC to under Sections

302, and 201 read with Section 34 of IPC.

12. As evident from the arrest memo (Ext. PW-24/A), the

Investigating Officer arrested Sunil @ Sonu (A-1) on June 10, 2009. After

that, as per the arrest memo (Ext. PW-23/A), the Police arrested Dinesh

(A-2) on the next day, i.e., June 11, 2009.

13. After the arrest, the accused Sunil volunteered to make a

disclosure statement under Section 27 of the Indian Evidence Act, which

the Investigating Officer recorded vide memo Ext. PW-13/A. Sunil

disclosed to the Police that he could show them the room where they had

killed Rajeev. This statement also mentions the fact that the Police had

recovered clothes that Sunil was wearing at the time of the crime.

14. Vide another disclosure statement recorded at the instance of

accused Dinesh, under Section 27 of the Indian Evidence Act (Ext. PW-

13/J), he disclosed that on the day of occurrence, i.e., May 18, 2009, the

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wheel spanner he had used in crime, was concealed by him beneath the

driver seat of his vehicle. Consequent to this disclosure statement, Police

.

discovered the said wheel spanner, vide memo (Ext. PW-13/K), dated

16.6.2019.

15. Vide another seizure memo dated 16.6.2009 (Ext. PW-16/A);

the Police seized clothes allegedly worn by Dinesh from the house of his

married sister.

16. After that, the Police visited the alleged scene of the crime and

prepared a spot map (Ext. PW-28/E). According to the spot map, the

scene of the crime was an abandoned Sarai (Inn), 150 meters away from

the road. Inside the building, the Police also noticed blood spots.

17. The Police also took a team of Forensic Science Experts, from

the Regional Forensic Science Laboratory, Dharamshala, to the scene of

occurrence. As per the report (Ext. PW-20/A) of Experts, it was a single

storey structure, having two rooms and a corridor. The Experts found

stains on the stones, blood on floor and two adjoining walls of the Sarai.

The tests carried out in the laboratory, did confirm the presence of the

blood. Still, it remained inconclusive whether the blood traced its origin to

a human or not.

18. Vide recovery memo (Ext. PW-23/B), dated 11.6.2009, the

Investigating Officer seized the Trax, bearing registration number HP-36A-

1944. The team of RFSL Dharamshala, also examined the said vehicle,

and scientist noticed brown colored stains on the backside of the middle

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seat cover. As per the report of the laboratory (Ext. PW-20/A), blood was

found present in the vehicle. However, the report is silent about the blood

.

of a human and also its group. Although the report (Ext.PY) of the State

Forensic Science Laboratory, Junga, detected blood on thread pieces

obtained from the vehicle, the laboratory did not opine the same to be

human blood.

19. As per the same report (Ext.PY), human blood was found on

the pajama of Sunil Kumar, but the laboratory could not detect the blood

group. The report also states that the Laboratory did not find blood on the

shirt of Accused Sunil Kumar and clothes of Dinesh.

20. The Investigating Officer sought a supplementary opinion from

the Doctors vide application dated 5.9.2009 (Ext.PW-24/D). On the same

day, Dr. Anita Mahajan (PW-3) opined that in the proper dispensation of

justice, the information regarding the weapon and injuries should be

sorted out from Dr. D.P. Swami, a Forensic Expert, who had also been

called by the Dehra Police on 19.5.2009, at the time of post mortem

examination, and under whose supervision the post mortem was

conducted. Dr. Anita Mahajan tendered her opinion in evidence and duly

corroborated this in her testimony.

21. After the completion of the investigation, Police filed a report

under Section 173 (2) CrPC, which arraigned the present respondents as

accused persons.

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22. Vide order dated Dec 9, 2009, the learned Trial Court, framed

charged against both the accused, for the commission of the offences

.

punishable under Sections 302 and 201 IPC, both individually as well as

with the aid of Section 34 IPC, to which they did not plead guilty and

claimed trial.

23. After the completion of the prosecution evidence, the Trial Court

in compliance to Section 313 CrPC, put incriminating circumstances to the

respondent-accused. Both the accused denied the prosecution case in its

entirety. They further claimed that the witnesses had deposed due to

political pressure and of the Police officials.

24. In defence, the accused examined one Jyotishi (Astrologer), as

DW-1, to prove that on the intervening night of 18th and 19th May 2009, it

was Krishan Paksha and Naumi. Pandit Baini Bilas (DW-1) stated that on

such date, the moon rose at 1.20 a.m. and set the next day at 1.07 p.m.

Copy of the panchaang was also exhibited as DW-1/A.

25. The learned Sessions Judge, Kangra at Dharamshala, HP, vide

judgment dated 23.10.2010, passed in Sessions Case No. 36-G/VII-2009,

dismissed the prosecution and acquitted both the accused of all charges.

It is against this judgment of acquittal that the State has come up before

this Court by filing the present appeal under Section 378(3) of the Code of

Criminal Procedure, 1973.

26. We have heard Ms. Swaneel Jaswal, learned Deputy

Advocate General for the appellant-State, Mr. Ashok Thakur, learned

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counsel for the complainant, Mr. Nimish Gupta, learned legal aid

counsel for respondent No. 1, Sunil Kumar (Accused A-1) and Mr.

.

K.S. Banyal, learned Senior Counsel assisted by Mr. Inder Rana,

learned counsel for respondent No. 2, Dinesh (Accused A-2). We

have also waded through the entire record, including the statements

of the witnesses and exhibits.

DISCUSSIONS REASONING

POST MORTEM REPORT:

27. To prove the charges of culpable homicide, first steps the

prosecution is required to take is verify through ‘Post Mortem Report’

that the death was neither natural nor accidental or suicidal.

28. The post mortem examination conducted by Dr. Anita

Mahajan (PW-3) did not opine that the death was not due to an

accident. To the contrary, she explicitly narrated in the post mortem

report (Ext. PW-3/C) that the possibility of death due to accidental

injury could not be ruled out. The Doctor also mentioned that she

gave this opinion under the guidance of Dr. D.P. Swami (PW-11).

29. Had there been no agitation by people of the area, then

nobody had any issue with the Post Mortem Report. However, after

the launching of agitation by the people, the Police succumbed to

the pressure, and sought additional information from Dr. Anita

Mahajan. She again clarified, vide her noting in Ext. PW-24/D, that in

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the proper dispensation of justice, the opinion regarding the weapon

of offence and the injuries, should be sought from Dr. D.P. Swamy,

.

Forensic Expert, who had been called by the Dehra Police on

19.5.2009 as an Expert, under whose supervision she had

conducted the post mortem examination.

30. It is pertinent to note here that both the accused appear to

be very ordinary people, and a legal aid counsel is representing

Sunil (A-1). It is not the remotest case of the prosecution that the

accused are influential persons. At the time when the doctor had

conducted the post mortem examination, there was no possibility of

any interference in the working of the Experts or use of any

influence.

31. Dr. Anita Mahajan (PW-3) testified that she had conducted

the post mortem examination under the guidance of Dr. D.P. Swami

(PW-11), who was a Forensic Expert. She further testified that when

the Police requested her to give an additional opinion about the

weapon of offence and injuries, then she clarified that it should be

sought from Dr. D.P. Swami, who is a Forensic Expert, and had also

been called at the time of the post mortem examination, which was

conducted under his supervision. During her testimony in Court, she

stood to her stand about the cause of death as she had opined in

the post mortem report. She categorically stated that the cause of

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death, in her opinion, was also the opinion of Dr. D.P. Swami,

Medical Expert. In cross-examination, she stated that the possibility

.

could not be ruled out that if a moving vehicle hits a person, then

injuries sustained by the said person would be the same as

mentioned in the post mortem report. According to her, the cause of

death, in this case, was inhalation of blood into the trachea due to

asphyxia and neurogenic shock.

32. Dr. D.P. Swami testified as PW-11 and stated that injuries

No. 11 and 12 were possible by weapon i.e., spanner. Even on its

face value, this does not lead to an irrefutable conclusion that the

injuries number 11 and 12, were not possible in an accident. What

Dr. D.P. Swami testified is that injuries No. 11 and 12 were possible

by the weapon shown to him, but it does not mean that these injuries

were not possible by any other means. He admitted that the post

mortem was conducted by Dr. Anita Mahajan, under his supervision,

but clarified that it was she who had done it mostly independently.

He further stated that Dr. Anita Mahajan gave an opinion about the

cause of death. This statement also establishes that primary

evidence about the cause of death would be the version of PW-3 Dr.

Anita Mahajan, who had conducted the Post Mortem Examination.

The version of PW-3 Dr. Anita Mahajan gets corroboration from the

post mortem report (Ext.PW-3/C), as well as the additional medical

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opinion (Mark PW24/A). Non consideration of this evidence is likely

to prejudice the accused.

.

33. The cause of death being accidental and not homicidal,

gets further corroboration from the plastic flap, which the

Investigating Officer had collected as evidence from the spot, where

the dead body was lying. As per the report of the State Forensic

Science Laboratory, Junga (Ext. PX), human blood of group ‘AB,’

was noticed on this plastic flap, and the blood of the deceased was

also of group ‘AB.’ The said plastic flap was of some vehicle, and it

had scratches on it, and its locks had broken. The presence of a

plastic flap on the spot points towards the accident.

34. SI Mukesh Kumar (PW-27) stated in his cross-examination

that he had interrogated the shop keepers where the dead body was

lying, but he did not record their statements. He admitted that

people had resented the cause of death. ASI Subhash Shastri (PW-

28), admitted that until May 30, 2009, the Dehra Police had

investigated the case for offence under Sections 279 and 304 IPC,

but the people were agitating, and there was blockage of roads.

Therefore, the possibility cannot be ruled out that the Police

succumbed to the public pressure.

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35. Even if the statement of PW-11 Dr. Swami is to be

believed, still, the evidence on the record must lead to a conclusion

.

of guilt and not of innocence.

IMPROBABILITY AND INCONSISTENCY IN PROSECUTION CASE

36. The case of the prosecution primarily is of the eye witness

account of Deepak Kumar @ Goldy (PW-4), and the rest upon

circumstantial evidence. On June 10, 2019, Deepak Kumar gave a

statement Ext. PW-4/A, under Section 164 CrPC, to Additional Chief

Judicial Magistrate, Dehra. The following aspects of this statement

grossly fail the test of credibility and make it highly doubtful and

improbable. In this statement, Deepak @ Goldy stated that once he

had returned to his home after half an hour, Sunil (A-1) came and

asked him to accompany him for some work. On this, he (PW-4)

refused, and Sunil got offended and also abused him. As per this

statement, Deepak then claimed to have stalked and followed Sunil

by carrying a torch. Now in the night, in a remote area, which as per

the spot map, had no street lights, nor there is any other evidence of

the same; if somebody would use torchlight, then the person who is

being followed will notice the illumination of light and would become

cautious. Secondly, the use of torchlight would show that there was

darkness all around, and once it was dark, then how could have

Deepak seen the incident?

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37. The next portion of the statement states that both the

accused, along with Rajeev, were standing outside the Sarai. Then

.

the accused caught hold of Rajeev and took him inside the Sarai,

where they hit him with an iron rod. It is impossible for a person,

standing at a distance, to notice as to what was happening inside

the building that, too, by focusing torchlight and without being

noticed. The moment light would fall in the room; the accused would

have become cautious and alert and would have chased the person.

There is no such evidence. Deepak Kumar did not say that the

accused had chased him or that the accused had come to know that

someone was spying upon them.

38. The most disturbing feature of this statement (Ext.PW-4/A)

is that twelve days after witnessing such a heinous crime, Deepak,

for no explainable reasons, agreed to accompany Sunil (A-1) to

Shimla. He was so eager to attend him that he reached a place

known as Ghaggas to meet Sunil and stayed with him for a week or

so in and around Shimla. Had he seen Sunil committing this offence,

then there was no reason or occasion for him to accompany Sunil to

Shimla and take the risk of his life by staying in his company. He

could have easily refused his request under any pretext. This

conduct shows improbability and creates a dent in his statement.

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39. Coming to the statement of this witness made in Court, he

stuck to his previous account under Section 164 CrPC. He further

.

stated in his testimony that on the next date at 7.00 a.m., when he

visited the bazaar to purchase shampoo, then he saw the dead body

of Rajeev. This witness kept quiet till he was apprehended by Police

allegedly on June 10, 2009, that is around three weeks after the

occurrence. His long silence blows away the mask.

40. Deepak admitted the suggestions that he remained present

in his village from May 18, 2009, till June 2, 2009. He further stated

that on June 8, 2009, when Police met him at Hanuman Chowk,

Dehra, Sunil was also with him. His testimony further reads that after

that, the Police took him as well as Sunil, and confined them to a

government-owned restaurant, where he narrated the entire incident

to the Police officials. He further admitted that he was present with

the Police from June 8, 2009, to June 10, 2009, and during that time,

the Police officials administered beatings to him.

41. Now given the specific statement of this witness, who was

barely 19 years at that time, and 20 years at the time of recording

statement on oath, it raises a high suspicion about the truthfulness

of his statement recorded under Section 164 CrPC. It emerges from

his account that he, along with Sunil, was with Police from June 8,

2009, onwards. This fact gets corroboration from the Police witness

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Constable Harjeet Singh (PW-16). In his cross-examination, Const.

Harjeet Singh admitted that on June 8, 2009, the Police had arrested

.

Sunil (A-1) and Goldy (PW-4). He further stated that both had

remained in Police custody for three/four days. Given this version of

Deepak that the Police had arrested him on June 8, 2009, there is

no reason to disbelieve him when he stated that the Police had

beaten him in custody. Because of this evidence, it would be

extremely unsafe to place any reliance on the statement of this

witness recorded on oath because it was verbatim the same, which

was made by him under Section 164 CrPC, which was under

duress.

42. It is inferable from the statement of Ajay Sharma (PW-13)

that the Police detained Deepak, and he remained in custody at

least till June 13, 2009. It shows the kind of pressure the Police had

built up upon this witness so that he does not retract from his

statement. In cross-examination, Deepak (PW-4) also admitted that

Police officials had told him to depose before the Judicial Magistrate

as he had narrated the incident to them.

43. The next improbability in the statement of Deepak is about

the availability of light. In the earlier statement recorded under

Section 164 CrPC (Ext.PW-4/A), this witness had stated that he had

carried a torch when he was following Sunil (A-1). However, while

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testifying in Court, apart from the fact of his carrying a torch, he

improved his version by saying that it was moonlit night. The

.

presence of moon has been disproved by defence witness (DW-1)

who relied upon the Science of Ancient Indian Astrology that on

May 19, 2009, the moon had risen on at 1.20 AM. Even as per

timeanddate.com, the Moon had risen at nearby Dharamshala, at

almost similar time, and statement of DW-1 gets corroboration from

the well established and irrefutable scientific evidence,

(https://www.timeanddate.com/moon/india/dharamshala). As per

Deepak Kumar (PW-4), the time when Sunil had come to his house,

it was around 10 pm. In the statement under Section 164 CrPC, it

was explicitly mentioned by Deepak that at about 9 or 9.30 PM, he

was present with both the accused and when they went towards

their home and thereafter the accused Sonu @ Sunil again came

there after half an hour. By no stretch of the imagination, the time

when Deepak Kumar (PW-4) had followed Sunil would be beyond

11.00 pm. Even it is not his case that it was past midnight when he

had followed Sunil to the Sarai. Thus to cover up low visibility in the

darkness of night, the Prosecution introduced the story of moonlight.

44. The next improbability in the statement of Deepak is his

noticing Rajeev and Dinesh Kumar (A-2), crossing him in the vehicle

at 9.30 PM. It was not a well-lit road, and in the high beam of the

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headlight, it would become next to impossible to recognize people

sitting in the vehicle, unless some other light reflects them. It is not

.

the stand of Deepak that the light of the cabin of the vehicle was

switched on.

45. This witness further admits in his cross-examination that

because of the death of Rajeev, the residents of village Sehri got

agitated and were on dharna. In the concluding portion of his cross-

examination, this witness states that at the time of recording his

statement under Section 164 CrPC, the Judicial Magistrate did not

administer him any oath.

46. The above discussion about the statement of Deepak

Kumar @ Goldy (PW-4) creates a grave doubt about the veracity of

his version, and it shall be highly unsafe to convict the accused

solely relying upon his evidence.

DISCLOSURE STATEMENTS:

47. The next circumstance which the prosecution is relying

upon is the disclosure statement made by accused Sunil @ Sonu,

under Section 27 of the Indian Evidence Act. The said statement,

Ext.PW-13/A, discloses about the room inside the Sarai where they

had killed Rajeev. The other portion of the statement is regarding the

seizure of his clothes by the Police. Even as per this statement, the

Police had already seized these clothes. Therefore, it cannot be a

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fact that was not in the notice of the Police, and would therefore not

fall under Section 27 of the Indian Evidence Act. Regarding the first

.

portion of the statement wherein he volunteered to disclose the room

inside the Sarai, this fact was already in the notice of the Police on

June 10, 2009, itself, through the statement of Deepak @ Goldy

(PW-4). Hence, it cannot be said to be a fact discovered.

48. Furthermore, as per the statement (Ext. PW-13/A), Sunil

had volunteered to disclose the room in the abandoned Sarai, but

there is no other statement corroborating the fact of such disclosure.

Had accused taken the Police officials to the room in the Sarai, as

he had volunteered to disclose in his statement, in that eventuality,

the Investigating Officer would have prepared some memo, duly

attested by witnesses, depicting their arrival in the Sarai.

49. On June 16, 2009, Dinesh Kumar (A-2) had also made a

disclosure statement (Ext. PW-13/J) under Section 27 of the Indian

Evidence Act. Dinesh had volunteered to point out towards the

vehicle in which he had concealed the spanner and also pointed out

the place in the house of his sister Shushma Devi, where he had

hidden his clothes. Consequent upon this statement, vide recovery

memo Ext.PW-13/K, Dinesh got recovered the spanner and vide

memo Ext. PW-16/A, he got recovered his clothes.

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50. The witnesses to the disclosure statement of accused

Sunil (Ext. PW-13/A), disclosure statement of accused Dinesh (Ext.

.

P-13/J), and recovery memo (Ext. PW-13/K) are Ajay Sharma (PW-

13) and Ramesh Chand (PW-14). Ajay Sharma, in his testimony,

denied such disclosure statements and did not support the

disclosure statement having been made by the accused. In his

cross-examination, Ajay Sharma stated that the deceased was the

brother-in-law of his friend, and on this count, he had gone to the

Police station. He further stated that at the time of such disclosure

statement, Deepak @ Goldy (PW-4) was also in Police custody.

After this, witness Ajay Sharma (PW-13) was declared hostile and

when leading questions were put to him he stated that on June 16,

2009, Dinesh had stated about concealment of a wheel spanner but

he did not disclose about the concealment of clothes in the house of

his sister.

51. The other witness to this disclosure statement is Ramesh

Chand (PW-14). He corroborated the case of the prosecution about

disclosure statements Ext. PW-13/A and Ext. PW-13/J. In the cross-

examination, he admitted that there was agitation by the habitants of

village Sehri, qua the death of Rajeev Kumar.

52. These disclosure statements, even if taken to be proved,

still do not lead to the discovery of any fact. The disclosure

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23

statement made by Dinesh was regarding spanner, whereas Deepak

categorically stated that Sunil had hit Rajeev by an iron rod. Even

.

otherwise, there is no scientific evidence of the presence of blood on

this wheel spanner. Therefore, the Prosecution has failed to

establish beyond a reasonable doubt, the wheel spanner as the

weapon of offence. Resultantly these disclosure statements are

inconsequential.

53. There is another aspect to these disclosure statements.

According to the Investigation Officer, and as apparent from the

arrest memo Ext.PW-24/A, Police had arrested Sunil Kumar on June

10, 2009. As already discussed, it came in evidence of Deepak

Kumar (PW-4), corroborated by the statement of Const. Harjeet

Singh (PW-16) that Police had arrested Sunil (A-1) on June 8, 2009.

It concludes that Sunil had already remained in illegal custody for

two days, before he made a disclosure statement, Ext. PW-13/A, on

June 13, 2009. Therefore, it becomes doubtful that Sunil had

voluntarily made the disclosure statement.

54. Similarly, the records show the date of arrest of the other

accused Dinesh (A-2) as of June 11, 2009, vide memo Ext. PW-

23/A, and the date of the disclosure statement Ext. PW-13/J as June

16, 2009. In between, it had come in evidence that the Police also

detained Deepak. Therefore, in the given facts, the authenticity of

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the disclosure statement would lose its effect after two days of illegal

detention and three days of arrest.

.

55. In the cross-examination of ASI Subhash Shastri (PW-28),

the Investigating Officer of CIA, he admitted that there was no

evidence of lifting, throwing, and carrying out the dead body. He

further revealed that in the abandoned structure (Sarai), which was

pointed out as the scene of the crime by Deepak (PW-4), there was

cow dung and other waste material present. The Sarai neither had

any door nor frame. If the offence had been committed in this Sarai,

then blood would have oozed out there. The blood recovered from

this Sarai was hardly sufficient enough to refer it to be human blood.

The presence of cow dung establishes that this Sarai was being

used as shelter by stray cattle. These premises would have been

used for so many activities by so many people. Thus the presence of

some blood would hardly be sufficient to establish that Rajeev

Sharma (deceased) was killed at Sarai. The blood otherwise could

be of some animal.

56. Another significant fact is that Pradeep Sharma (PW-1) at

whose instance the Police had recorded FIR, and who had seen the

dead body mentions explicitly that the dead body was lying on the

side of the road, and a lot of blood had oozed out. Had Rajeev been

killed in the Sarai, the blood would have oozed out in the Sarai itself

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and not on the road. ASI Subhash Shastri (PW-28), who was

appointed as the Investigating Officer when the investigation was

.

handed over to the CIA, explicitly stated that there was no evidence

of lifting, throwing, and carrying of the dead body. It establishes that

the deceased had received injuries on the side of the road, where he

was lying. There is no evidence to believe that he was killed at the

Sarai, and his body was transported to the roadside and laid there.

57. To connect the accused with the crime, the statement of

PW-6 Santosh Devi, mother of the deceased, is relevant. She stated

that Dinesh is from their brotherhood. She testified that on the day

before the death of her son Rajeev, that is on May 17, 2009, her son

had reached home at around 6 PM, and at dinner, he had told her

that Dinesh had threatened him and proclaimed that only one of

them would survive. On this, she had consoled him by assuring that

on the next day, she would look into the matter, and she accordingly

went to the house of Dinesh, who was not present there. Even if this

statement is believed in toto, still, this proclamation, in the absence

of motive and other evidence, would hardly connect Dinesh with the

commission of the alleged crime. Had she found the threats to be

serious, then she would have at least spoken with the elders in the

family, and on the extension of the threat would not have taken the

risk of her son leaving home.

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LAST SEEN TOGETHER:

58. The next thread of evidence which the prosecution is

.

relying upon is that Rajeev was last seen with Dinesh. The

prosecution examined Rakesh Kumar (PW-7), who had given a lift to

Rajeev, up to the clinic at Dhaliara, where Dinesh (accused A-2) had

been administered a drip in Amrit Clinic. According to this witness,

he had dropped Rajeev in the said clinic at 7-7.15 PM. The

prosecution also examined Dheeraj Sharma (PW-9), who runs the

said clinic at Dhaliara, and corroborated the fact that Dinesh was on

a drip, and that he doctor had discharged him at 7.30 PM. Thus the

case set up by the prosecution is that after discharge, Dinesh had

accompanied Rajeev, and after that, he was found dead. However,

the time gap between noticing the dead body of Rajeev and his

presence at the clinic with Dinesh is enormous.

59. PW-9 Dheeraj Sharma explicitly stated in his examination-

in-chief, that after closing his clinic at 8.30-8.45 PM, when he had

reached near Nehran Pukhar, he saw Rajeev present there. PW-9

Dheeraj Sharma did not explain that at that time, whether Rajiv was

alone or was present with someone, and if yes, then who was such

a person. As such, the theory of last seen is demolished by the

prosecution’s witness, that too in his examination-in-chief.

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60. A Division Bench of this Court, in State of HP v. Sunil

Kumar, 2017 Latest HLJ 1363, authored by one of us, (Justice Tarlok

.

Singh Chauhan) holds,

“23. Thus, it can be taken well settled that in the absence

of proof of other circumstances, the only circumstance of
last seen together and absence of satisfactory explanation
cannot be made the basis of conviction.”

61. The other evidence, the prosecution tried to bring was

about the motive. The prosecution attempted to build up a case that

Dinesh (A-2), as well as Rajeev (deceased) had a relationship with a

girl, named Vandana, and suspecting the multiplicity of her partners

would have led to absence of monogamy, Dinesh eliminated Rajeev.

However, the prosecution never examined said Vandana, who was

the most material witness to prove the fact of her knowing any of

them or both of them. In the absence of her testimony, there is

nothing to believe that she knew either Rajeev or Dinesh. Thus, this

circumstance is also not proved.

ADMISSIONS MADE IN CROSS-EXAMNATION:

62. Ms. Swaneel Jaswal, learned Deputy Advocate General,

states that because of the admissions made on behalf of the

accused, while cross-examining Deepak Kumar @ Goldy (PW-4),

the crime, as well as the weapon of offence used in the crime,

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stands admitted, and the burden shifts upon the accused to explain

the same. She drew the attention to the cross-examination of

.

Deepak (PW-4) by the learned counsel for Sunil (accused A-1). The

portion of cross-examination that Ms. Swaneel Jaswal, places

reliance upon, is extracted as follows:

“It is correct to suggest that I had given the statement
before the Judicial Magistrate that accused persons

had hit the deceased with iron rod. My statement was
also recorded by the Investigating Officer. It is correct
to suggest that I had informed the Investigating

Officer that accused had killed the deceased by iron

rod”.

63. The purpose of cross-examination is to impeach the

credibility of the witness. It is not the job of the Defence Counsel to

confess on behalf of his client. Cross-examination is the most

important tool available with the accused to defend his liberty, and

while doing so, the Defence Counsel is under an obligation not to

breach the Lakshaman Rekha and in other words, not to exceed his

brief.

BURDEN OF PROOF:

64. When one calls another a thief, then it is for the accuser to

prove that the accused is a thief. There may be some cases where

the evidence proved in the Examination-in-chief of a witness is

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29

insufficient to arrive at the guilt of conviction, and no cross-

examination would be required. Once the Prosecution discharges

.

the initial burden, only then the burden would shift upon the accused

to demonstrate that how the offending article did come in her

possession. It is the cardinal principle of criminal jurisprudence that

barring a very exceptional class of cases, the burden to prove an

offence and establish guilt is always on the Prosecution, and it never

shifts.

65. In Noor Aga v. State of Punjab, (2008) 16 SCC 417, Supreme

Court holds,

“51. …It is a trite law that Presumption of innocence being
a human right cannot be thrown aside, but it has to be

applied subject to exceptions.”

66. In Amba Lal v. Union of India, AIR 1961 SC 264, Constitutional

Bench of Supreme Court, while dealing with S. 5 of the Land

Customs Act, holds,

“8. We cannot also accept the contention that by reason
of the provisions of S. 106 of the Evidence Act the onus lies
on the appellant to prove that he brought the said items of
goods into India in 1917. Section 106 of the Evidence Act in
terms does not apply to a proceeding under the said Acts.
But it may be assumed that the principle underlying the said
section is of universal application. Under that section when
any fact is especially within the knowledge of any person
the burden of proving that fact is upon him. This Court in

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Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 after
considering the earlier Privy Council decisions on the
interpretation of S. 106 of the Evidence Act, observed at p.

.

204 (of SCR) thus :

“The section cannot be used to undermine the well
established rule of law that, save in a very exceptional

class of case, the burden is on the prosecution and
never shifts.”

67. In Ritesh Chakarvarti v. State of Madhya Pradesh, 2006 (12)

SCC 321, Supreme Court holds,

“33. It was furthermore urged that Appellant has not been
able to prove the defence raised by him. It was not

necessary for him to do so. It was contended that the

burden to prove the defence set up by him was on Appellant
and he failed to discharge the same. In a case like the
present one, the said submission cannot be appreciated.

The prosecution was required to prove its case beyond all
reasonable doubt.”

CROSS-EXAMINATION:

68. It is the art of cross-examination which decides the fate of

so many accused. In the present system, when the Scientific tools

and Artificial Intelligence is yet to be put in use to detect the lies,

cross-examination still remains the most crucial tool to impeach the

credibility of a witness; to destroy or weaken the evidentiary value of

the witness of her adversary; to demonstrate that the witness is

unworthy of belief; to test her veracity; to discover who she is and

what is her position in life; except to the victims of sexual offences,

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to shake her credit by injuring her character, to elicit facts favouring

her client; and to build the foundation to set up the case of the

.

defence, e.g., plea of Alibi, Private Defence etc.

69. A Constitution Bench of Supreme Court in Kartar Singh v.

State of Punjab, (1994) 3 SCC 569, holds,

“278. Section 137 of the Evidence Act defines what cross-
examination means and Sections 139 and 145 speak of the

mode of cross-examination with reference to the documents
as well as oral evidence. It is the jurisprudence of law that
cross-examination is an acid-test of the truthfulness of the

statement made by a witness on oath in examination-in-

chief, the objects of which are:

(1) to destroy or weaken the evidentiary value of the witness
of his adversary;

(2) to elicit facts in favour of the cross-examining lawyer’s

client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by
impeaching the credit of the said witness; and the questions
to be addressed in the course of cross-examination are to

test his veracity; to discover who he is and what is his
position in life; and to shake his credit by injuring his

character.”

70. In Mohd. Hussain @ Julfikar Ali v. The State (Govt. of

NCT) Delhi, (2012) 2 SCC 584, Supreme Court holds,

“42. …The fate of the criminal trial depends upon the
truthfulness or otherwise of the witnesses and, therefore, it
is of paramount importance. To arrive at the truth, its
veracity should be judged and for that purpose cross-
examination is an acid test. It tests the truthfulness of the
statement made by a witness on oath in examination-in-

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chief. Its purpose is to elicit facts and materials to establish
that the evidence of witness is fit to be rejected. ”

.

71. In Juwarsingh v. State of M.P., (1980) Supp1 SCC 417,

Supreme Court holds,

“5. …Cross-examination is not the only method of

discrediting a witness. If the oral testimony of certain
witnesses is contrary to proved facts their evidence
might well be discarded on that ground. If their testimony

is on the face of it unacceptable. Courts are not bound to
accept their testimony merely because there was no
cross-examination.”

72. In Nga Ba Sein v. Emperor, AIR 1936 Rangoon 1, the facts

of the case were that the deceased Maung Maung was the brother-

in-law of Convict Nga Ba Sein. Both of them lived in houses with a

joint compound. On the evening of 5th Dec 1934, Nga Ba Sein,

under the influence of liquor, started hurling abuses at his brother-in-

law Maung Maung, who asked him to desist because he had guests

in his house. However, the accused refused and kept using foul

language. On this, Maung Maung took a pitchfork, and both of them

went towards the side of the house and were not visible to other

occupants. After some time, the residents heard the sound of

several blows, followed by silence. On rushing to the spot, the wife

of Maung Maung saw her husband lying unconscious. The family

took him to the hospital, and before regaining consciousness, he

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passed away. In the Post Mortem Examination, the Doctor noticed a

punctured wound on the forehead, and the piercing was 5 inches

.

deep into the skull. The accused was put to trial. The Counsel for the

accused openly advised his client to admit the assault and plead the

right of private defence, but the accused persisted in denying the

incident. The Trial Court, although convicted the accused under

Section 304 IPC, but did not consider the plea of private defence

because it was not specifically pleaded and the incident was denied

altogether. In the appeal, the Rangoon High Court, affirming the

conviction and sentence, concluded that the conviction under

Section 304 IPC was right but for reasons other than stated by the

Trial Court, and held that the accused had exceeded his right of

private defence. The reasoning behind such a conclusion, in the

words of Dunkley J, is as follows,

“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. And that is what was done in the present case.
There is no doubt that the appellant had a right of private
defence of his body against the deceased. But nevertheless
seeing that the circumstances lead to the inference that the
appellant killed the deceased with the deceased’s own
weapon, it must further be inferred that the appellant
managed to wrest his weapon away from the deceased. As
soon as he did so his right of private defence, of course,

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ceased, and consequently it must be held that in killing the
deceased he exceeded the right of private defence of his
body.”

.

INITIAL BURDEN NEVER WAIVES:

73. Another angle to analyze the issue is that of “burdens.”

The burdens prosecution can never waive. For instance, based on

the suggestions of defence, to a complainant, during her cross-

examination, that the complaint is verbatim the same as was told to

her by the victim, the prosecution cannot seek dispensation of the

victim from recording her statement on oath. The burden on the

Prosecution to prove its case is independent of the suggestions of

the Defence Counsel.

74. In Rangappa Goundan v. Emperor, AIR 1936 Madras 426,

a division bench of Madras High Court observed,

“It is an elementary rule, that except by a plea of
guilty, admissions dispensing with proof, as distinguished

from admissions which are evidential, are not permitted in a
criminal trial (see Phipson on Evidence, p. 19)”.

DOCTRINE OF REVERSE BURDEN:

75. Glanville Williams, in ‘Textbook of Criminal Law’ (2nd Edn.)

page 56, writes,

“Harking back to Woolmington, it will be remembered
that Viscount Sankey said that “it is the duty of the
prosecution to prove the prisoners guilt, subject to the
defence of insanity and subject also to any statutory
exception”. … Many statutes shift the persuasive burden. It
has become a matter of routine for Parliament, in respect of
the most trivial offences as well as some serious ones, to

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enact that the onus of proving a particular fact shall rest on
the defendant, so that he can be convicted “unless he
proves” it.”

.

76. In M/s. Seema Silk Sarees Anr. v. Directorate of

Enforcement Ors., 2008 (7) SCALE 624, in a case where the
constitutionality of the provisions of Sections 18(2) and 18 (3) of the

Foreign Exchange Regulation Act, 1973 were questioned on the
ground of infringing the ‘equality clause’ enshrined in Article 14 of the
Constitution of India, Supreme Court holds,

“16. A legal provision does not become unconstitutional only
because it provides for a reverse burden. The question as regards
burden of proof is procedural in nature. [See Hiten P. Dalal v.
Bratindranath Banerjee, (2001) 6 SCC 16 and M.S. Narayana

Menon v. State of Kerala, (2006) 6 SCC 39]

17. The presumption raised against the trader is a rebuttable one.

Reverse burden as also statutory presumptions can be raised in
several statutes as, for example, the Negotiable Instruments Act,
Prevention of Corruption Act, TADA, etc. Presumption is raised only
when certain foundational facts are established by the prosecution.

The accused in such an event would be entitled to show that he
has not violated the provisions of the Act.” …

77. In Syed Akbar vs. State of Karnataka, AIR 1979 SC 1848,

Supreme Court holds,

“28. In our opinion, for reasons that follow, the first line of
approach which tends to give the maxim a larger effect than that of
a merely permissive inference, by laying down that the application
of the maxim shifts or casts, even in the first instance, the burden

on the defendant who in order to exculpate himself must rebut the
presumption of negligence against him, cannot, as such, be
invoked in the trial of criminal cases where the accused stands
charged for causing injury or death by negligent or rash act. The
primary reasons for non- application of this abstract doctrine of res
ipsa loquitur to criminal trials are: Firstly, in a criminal trial, the
burden of proving everything essential to the establishment of the
charge against the accused always rests on the prosecution, as
every man is presumed to be innocent until the contrary is proved,
and criminality is never to be presumed subject to statutory
exception. No such statutory exception has been made by requiring
the drawing of a mandatory presumption of negligence against the

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accused where the accident “tells its own story” of negligence of
somebody. Secondly, there is a marked difference as to the effect of
evidence viz. the proof, in civil and criminal proceedings. In civil
proceedings, a mere preponderance of probability is sufficient, and

.

the defendant is not necessarily entitled to the benefit of every

reasonable doubt; but in criminal proceedings, the persuasion of
guilt must amount to such a moral certainty as convinces the mind
of the Court, as a reasonable man beyond all reasonable doubt.

Where negligence is an essential ingredient of the offence, the
negligence to be established by the prosecution must be culpable
or gross and not the negligence merely based upon an error of
judgment. As pointed out by Lord Atkin in Andrews v. Director of
Public Prosecutions, “simple lack of care such as will constitute civil

liability, is not enough”; for liability under the criminal law “a very
high degree of negligence is required to be proved. Probably, of all
the epithets that can be applied `reckless most nearly covers the
case.” r

78. In Noor Aga v. State of Punjab, (2008) 16 SCC 417,

Supreme Court, while dealing with a matter under Narcotics Drugs

and Psychotropic Substances Act, 1985, holds,

“40. The provision for reverse burden is not only provided for
under the special acts like the present one but also under the

general statutes like the Indian Penal Code. The Indian Evidence
Act provides for such a burden on an accused in certain matters,
as, for example, under Section 113A and 113B thereof. Even

otherwise, this Court, having regard to the factual scenario involved
in cases, e.g., where husband is said to have killed his wife when
both were in the same room, burden is shifted to the accused.”

Supreme Court further holds,

“60. Whether the burden on the accused is a legal burden
or an evidentiary burden would depend on the statute in
question. The purport and object thereof must also be taken
into consideration in determining the said question. It must
pass the test of doctrine of proportionality. The difficulties
faced by the prosecution in certain cases may be held to be
sufficient to arrive at an opinion that the burden on the
accused is an evidentiary burden and not merely a legal

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burden. The trial must be fair. The accused must be provided
with opportunities to effectively defend himself.”

.

79. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra,

(2012) 10 SCC 373, Supreme Court holds,

“23. It is settled law that presumption of fact is a rule in law of

evidence that a fact otherwise doubtful may be inferred from certain
other proved facts. When inferring the existence of a fact from other
set of proved facts, the Court exercises a process of reasoning and
reaches a logical conclusion as the most probable position. The
above position is strengthened in view of Section 114 of the

Evidence Act, 1872. It empowers the Court to presume the
existence of any fact which it thinks likely to have happened. In that
process, the Courts shall have regard to the common course of
natural events, human conduct etc. in addition to the facts of the
case. In these circumstances, the principles embodied in Section

106 of the Evidence Act can also be utilized. We make it clear that

this Section is not intended to relieve the prosecution of its burden
to prove the guilt of the accused beyond reasonable doubt, but it
would apply to cases where the prosecution has succeeded in
proving facts from which a reasonable inference can be drawn
regarding the existence of certain other facts, unless the accused

by virtue of his special knowledge regarding such facts, failed to
offer any explanation which might drive the Court to draw a different
inference.”

80. In Tomaso Bruno v. State of U.P., Supreme Court of India,

2015(7) SCC 178, three Judge bench of Supreme Court holds,

“18. The principle underlying Section 106 of the Evidence Act
is that the burden to establish those facts, which are within his
personal knowledge is cast on the person concerned, and if he fails
to establish or explain those facts, an adverse inference may be
drawn against him”…

81. In Jagdish Budhroji Purohit v State of Maharashtra, AIR

1998 SC 3328, Supreme Court observed,

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“5. …The factory belonged to the appellant. He was the sole
proprietor. In view of these facts and circumstances, it was
necessary for the appellant to explain how the offending articles
came to be found from his factory. He did not offer any plausible

.

explanation.”…

82. In Dilip Mallick v. State of West Bengal, AIR 2017 SC

1133, Supreme Court holds,

“In the examination under Section 313 Cr. P.C. the
accused denied any knowledge of the crime and alleged false
implication. Section 106 of the Indian Evidence Act, 1872

imposes an obligation on the accused to explain as to what
happened after they were last seen together.”

ADMISSIONS:

83. Courtney Stanhope Kenny in his Treatise, “OUTLINES OF

CRIMINAL LAW”, based on lectures delivered in the University of

Cambridge, (Fifteenth Edition), Cambridge (1936), stated as follows,

Rule IV. In criminal proceedings Admissions made by (or on behalf
of) a party to the litigation are received in evidence less readily than

in civil cases. (P. 467)
A further difference between civil and criminal courts, in their

treatment of admissions, concerns such admissions as are made
by mere agents. In civil proceedings, where-ever the acts of an
agent will bind the principal his admissions will also bind him, if

made in the same affair and at the same time, so as to constitute a
part of the transaction. (Thus, in an action against a railway
company by a passenger for the loss of his luggage, the
admissions of the station-master as to the way in which the loss
took place, made by him the next day after the loss, in answer to
inquiries for the luggage, are good evidence against the company,
Morse v. C.R. Railroad (1856), 6 Gray 450). But criminal law does
not adopt this wide rule; it never holds a principal liable for
admissions made by his agents except when he has authorized
them expressly. Accordingly an admission made by a prisoner will
not be evidence against his accomplices in the crime, unless it had
been expressly authorized by them.1 (Rex v. Pilley (1922), 16 Cr.

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App. R. 138). Yet, as we have seen (ante, P.341), so soon as a
common criminal purpose has been shewn, evidence of the acts of
one accomplice, though done in the absence of the others, will be
admissible against all of them (P. 472).

.

84. In Jagannath Rana v. State, 1994 (1) Crimes 116, Orissa

High Court observed,

8. As regards the first question, the admission by way of
suggestion by an Advocate is admissible in evidence
only under section 18 of the Evidence Act which deals
with admission by party to proceeding or his agent. A

statement made by an agent or a party, whom the Court
regards, under the circumstances of the case, as
expressly or impliedly authorised by the party to make it,
is an admission and admissible against the party,
provided that the statement fulfils the evidentiary
rrequirement enjoined in section 17. But it has to be seen

whether an admission by an agent can be treated as
evidence in a criminal case.

EFFECT OF SUGGESTIONS MADE DURING CROSS-EXAMINATION:

85. Procedural law has become so complicated that the

accused who chooses to tread alone is unlikely to reach her

destination. A lawyer is a guide, who holds the hand of the accused,

apprises her of the legal benefits guaranteed to her by the law of the

land, and ensures that the trial is fair and her liberty does not curtail

without following the due process of law. Defence counsel does

make binding suggestions, which are comparable to a medical

procedure involving amputation of a limb to save her life. For

instance, the offences where the burden of proof is on the accused,

like that the coitus was consensual; the injuries were inflicted in

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40

private defence; plea of Alibi, post-dated cheque had been issued to

discharge a liability which subsequently never arose, etc. Even this

.

evidence is to be read only in light of the stand of the accused in her

statement recorded under Section 313 CrPC. However, in cases

where the burden is entirely on the prosecution to prove its case and

still, by mistake, lack of expertise, or misunderstanding of the facts

by Counsel, she throws unwarranted suggestions, which were either

premature or otherwise were not at all required in the facts and

circumstances of such case, then it shall be hazardous to rely on

such suggestions. The counsel is provided to safeguard the legal

interest of the accused and not to facilitate proof of her guilt.

Hypothetically, suppose counsel for defence makes a loose

suggestion to a Doctor, who had conducted Post Mortem

Examination, that the injury was not possible by weapon ‘X’ but by

weapon ‘Y’, and to the Investigating officer that the accused had

inflicted the fatal blow by weapon ‘Y’ and not by the weapon ‘X’,

then, in the absence of other evidence, would it be prudent to arrive

at a conclusion of guilt only on those suggestions? The answer is

NO! The Defence Counsel is supposed to comprehend her

suggestions with extreme care, great caution and meticulous

preparations, which is comparable to the prescription of salts and its

dosage by a Physician to her patient, depending upon illness, her

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41

age and so many other factors, and where excess kills, less does

not work and expired medicines lose potency.

.

86. In Sakariya v. State of Madhya Pradesh, 1991 CrLJ 1925,

Madhya Pradesh High Court observes,

“11. The submission made by the learned counsel, deserves
consideration. The learned counsel is right when he says that major
portion of trial Court’s discussion is devoted to the suggestions
made by the defence counsel in cross-examination. But before
considering the defence-stand and the evidence in support thereof,

it is essential for the Court to reach a conclusion and record a
positive finding about the proof of the prosecution case. The falsity
of a suggestion, as in the instant case, consent thrown to a witness
would not by itself prove the prosecution case and the guilt of the

accused, though in a given case, depending on circumstances, it
may be an additional circumstance along with other duly

established and proved circumstances against the accused. Since
it was suggested to the prosecutrix Surli in her cross-examination
that the act was committed with her consent, what the trial Court
appears to have done is starting with assumption of proof of rape
and negativing consent convicted the appellant. This approach,

considering the defence plea first, before dealing with the
prosecution evidence and reaching a conclusion based thereon, is
completely wrong. What is its effect is another matter but such an

approach on the part of the trial Court cannot be approved of as it
does not augur well with well-established and well-recognised
concepts of criminal jurisprudence.

12. As has been noted above, the trial Court has not adverted to
the plea taken by the accused in his statements recorded Under
Section 313, Criminal Procedure Code. The learned Judge has

remained confined to and content with the suggestion about
consent, made to Surli in her cross-examination.

13. The trial Court has not gone beyond this suggestion and not
even looked into the appellant’s statement recorded Under Section
313, Criminal Procedure Code, in order to ascertain the defence-
plea, not looking into the statement recorded under Section 313,
Criminal Procedure Code and merely confined a suggestion thrown
to a witness, is certainly not fair. Going through the statement of the
accused and his plea as recorded by the trial Court, it was a case
of plain denial and false implication. Now coming to the question of
suggestion about consent on her part made to prosecutrix Surli, it is
this suggestion, which has been virtually substituted for proof of

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42

guilty by the trial Court and, therefore, needs to be considered in all
its aspects.

14. The relevant section, regarding admission, is Section 17 and
Section 18 of the Evidence Act. Section 18 of the Evidence Act

.

deals with admission by party to proceeding or his agent. Whether

a suggestion thrown by the defence counsel to a prosecution
witness, amounts to an admission on the part of the accused is a
crucial question which requires consideration. It is a common

practice to suggest to a witness while he or she is under cross-
examination, the case of the defence when such evidence or
suggestion is denied, it does not constitute any evidence.
Suggestions put are no evidence at all against the accused and on
the basis of such suggestion no interference can be drawn against

the accused that he admitted the fact suggested in the cross-
examination as has been erroneously done by the learned Judge of
the trial Court in the instant case. The proof of guilty, required of the
prosecution does not depend on the suggestion thrown to a
witness.

15. On the basis of mere suggestion about consent thrown to the
prosecutrix, the learned Judge of the trial Court has virtually

dispensed with proof of offence of rape. An accused, as has been
discussed above, is not bound by such a situation or implied
admission made by the counsel.

… …

19. In criminal cases a suggestion thrown to a prosecution witness
under cross-examination by defence counsel cannot be used as an
implied admission so as to dispense with proof of the prosecution
case. It is only the plea of guilty, pleaded by an accused which can

relieve the prosecution of its burden of proof. The learned Judge of
the trial Court contrary to these settled principles of criminal

jurisprudence has acted upon the suggestion made to the
prosecutrix, about her being consenting party to the act.”

87. In Harpal v. State of Haryana, 2010 (2) RCR (Cri) 504,

Punjab Haryana High Court observed,

“11. As has been noted above, the trial court has not adverted to
the plea taken by the accused in the statement recorded under
section 313 of the Code of Criminal Procedure. The learned trial
Judge remained confined to the suggestions about consent etc.
made to prosecutrix and other witnesses during the course of
cross-examination. In fact, the trial court has not gone beyond this
suggestion and not even looked into the appellant’s statement
recorded under section 313 of the Code of Criminal Procedure in
order to ascertain the defence plea. Going through the statement of

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43

the accused and his plea as recorded by the trial court, it was a
case of plain denial and false implication. At this stage, I would like
to peep through the provisions of sections 17 and 18 of the
Evidence Act regarding admission. Section 18 of the Evidence Act

.

deals with admission by party to proceeding or his agent. Whether

a suggestion put by the defence counsel to a prosecution witness,
amounts to an admission on the part of the accused is a crucial
question which requires consideration. It is a common practice to

suggest to a witness while he or she is under cross-examination,
the case of the defence when such evidence or suggestion is
denied, it does not constitute any evidence. Suggestion put are no
evidence at all against the accused and on the basis of such
suggestion no interference can be drawn against the accused that

he admitted the fact suggested in the cross-examination as has
been erroneously done by the learned Judge of the trial court in the
instant case. The proof of guilty required of the prosecution does
not depend on the suggestion put to a witness. I would also like to
observe that on account of mere suggestions to the prosecutrix, the

learned trial Judge has virtually dispensed with the proof of offence
of rape.

88. However, in Manish Thakur @ Monu v. State of Himachal

Pradesh, 2011 (25) R.C.R. (Criminal) 32, a single judge of this High

Court holds,

“18. On the close scrutiny of the statement of the prosecutrix and
also the suggestions put to her with respect to consensual sexual

intercourse, at least it stands established that the sexual
intercourse had taken place with the prosecutrix and at the same
time the identity of the accused also stands established.”

89. In Koli Trikam Jivraj and another v. The State of Gujarat,

AIR 1969 Guj 69, Division Bench of Gujrat High Court observes,

“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

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44

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.”

90. After referring to Nga Ba Sein v. Emperor, (AIR 1936

r to
Rangoon 1), the Court went on to observe,

“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.”

91. The decision in Koli Trikam Jivraj was followed by High

Court of Himachal Pradesh in Budh Ram v. State of Himachal

Pradesh, 2010 CriLJ 1818 and also in Rajesh Kumar v. State of H.P.,

2013 Law Suit (HP) 591

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45

92. However, later on, in Tarjubhai Narsinghbhai Rathwa v.

State of Gujarat, 2014 (6) RCR(Cri) 297, a Division Bench of Gujrat

.

High Court observed,

“29. To our mind, with great respect, the views expressed by Their
Lordships in Koli Trikam Jivraj does not lay down the correct

proposition of law in view of the subsequent decisions of the
Supreme Court on the issue in question.

30. In Tarun Bora alias Alok Hazarika v. State of Assam, 2002 CrLJ
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.

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

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46

accused did not participate in blind-folding the eyes of
the witness nor assaulted him.”

31 In Rakeshkumar alias Babli v. State of Haryana, 1987 AIR(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:

r “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 counsel
would definitely be binding on his client, except the concession on

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47

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 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.
… …

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 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 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

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48

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 red 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
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 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

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49

the Court along with other evidence on record to determine the guilt
of the accused.”

PREJUDICES TO THE ACCUSED DURING TRIAL:

.

93. Rafiq Ahmad alias Rafi v. State of U.P., (2011) 8 SCC 300,

Supreme Court observed,

“35. When we speak of prejudice to an accused, it has to be shown
that the accused has suffered some disability or detriment in the
protections available to him under the Indian criminal jurisprudence.
It is also a settled canon of criminal law that this has occasioned

the accused with failure of justice. One of the other cardinal
principles of criminal justice administration is that the courts should
make a close examination to ascertain whether there was really a
failure of justice or whether it is only a camouflage, as this
expression is perhaps too pliable. With the development of law,

Indian courts have accepted the following protections to and rights

of the accused during investigation and trial:

(a) The accused has the freedom to maintain silence during
investigation as well as before the court. The accused may choose
to maintain silence or make complete denial even when his
statement under Section 313 of the Code of Criminal Procedure is

being recorded, of course, the court would be entitled to draw an
inference, including adverse inference, as may be permissible to it
in accordance with law;

(b) Right to fair trial;

(c) Presumption of innocence (not guilty);

(d) Prosecution must prove its case beyond reasonable doubt.

36. Prejudice to an accused or failure of justice, thus, has to be
examined with reference to these aspects. That alone, probably, is
the method to determine with some element of certainty and
discernment whether there has been actual failure of justice.

“Prejudice” is incapable of being interpreted in its generic sense
and applied to criminal jurisprudence. The plea of prejudice has to
be in relation to investigation or trial and not matters falling beyond
their scope. Once the accused is able to show that there is serious
prejudice to either of these aspects and that the same has defeated
the rights available to him under the criminal jurisprudence, then
the accused can seek benefit under the orders of the court.

37. Right to fair trial, presumption of innocence until
pronouncement of guilt and the standards of proof i.e. the
prosecution must prove its case beyond reasonable doubt are the
basic and crucial tenets of our criminal jurisprudence. The courts
are required to examine both the contents of the allegation of

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50

prejudice as well as its extent in relation to these aspects of the
case of the accused. It will neither be possible nor appropriate to
state such principle with exactitude as it will always depend on the
facts and circumstances of a given case. Therefore, the court has

.

to ensure that the ends of justice are met as that alone is the goal

of criminal adjudication.”

94. In Ram Awadh v. State of U.P., 1999 Cr.L.J. 4083, the

Allahabad High Court held,

“14. …A defence lawyer plays an important role in bringing out
the truth before the Court by cross-examining the witnesses and

placing relevant materials or evidence. The absence of proper
cross-examination may at times result in miscarriage of justice and
the Court has to guard against such an eventuality.”

95. In Bansidhar Mohanty v. State of Orissa, AIR 1955 SC

585, a four member bench of Supreme Court holds,

“We do not think it is any part of the duty of the defence advocate to
fill up the lacunae in the evidence adduced by the prosecution.”

ANALYSIS OF ABOVE DISCUSSION:

96. In a Criminal case, the suggestions of a defence counsel,

neither amount to admissions nor evidence but the answers given by

witnesses, on such suggestions, are admissible in evidence.

However, the Court may also consider suggestions made by the

defence counsel in aid to the other evidence proved by the

Prosecution, keeping in view the following aspects:

(a) The suggestions do not amount to confession on behalf
of the accused;

(b) The factual matrix in which the Defence Counsel had
put the suggestions incriminating to her client;

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51

(c) The suggestions were not premature;
(d) The suggestions were required in the facts and

.
circumstances of case;

(e) The trend of suggestions of Defence to the witnesses,
from inception to completion of the trial;

(f) The suggestions were made to discharge the statutory
and legal burden;
(g) The defence counsel did not exceed her brief;

(h) The suggestions are in consonance with the explanation
offered by accused under Section 313 CrPC.

97. Coming to the factual matrix of the present case, although

it is difficult to ascertain as to why this witness was cross-examined

without serving any purpose, still it only refers to the statement

recorded by the Judicial Magistrate as well as the Investigating

Officer, which given the preceding discussions, cannot be relied

upon because of the incredibility of the witness.

98. In view of the complete analysis of the evidence and the

application of law, the prosecution has failed to prove the culpable

homicide as well as connection of the accused with the death of

Rajeev Sharma @ Vicky. The prosecution has failed to prove its

case beyond reasonable doubt.

99. The judgment of acquittal passed by the Trial Court is well

reasoned and is based on correct and proper appreciation of

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52

evidence. There is neither any illegality/infirmity nor any perversity

with the same, resulting into miscarriage of justice.

.

100. In view of the above discussions, we find that there is no

merit in the appeal and hence the same is dismissed. The judgment

rendered by the learned Trial Court in Sessions Case No. 36-G/VII-

2009, dated 23.10.2010, is affirmed.

101. Bail bonds furnished by the accused are discharged. All

pending applications (if any) are closed.

Registry to return the records.

(Tarlok Singh Chauhan),
Judge.

(Anoop Chitkara),
Judge.

November 15th , 2019 (PK)

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