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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.

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.

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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."

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.