[S.5 BSA] 'Photos Of Place Where Crime Occurred Is Relevant Document While Cross-Examining Witness': Kerala High Court
The Kerala High Court has held that a defence lawyer may confront a prosecution witness with relevant documents such as photographs or site plans during cross-examination if those materials are connected to the facts in issue
Justice G. Girish delivered the judgment in a criminal miscellaneous petition challenging the order of the Additional Sessions Judge, Ernakulam, who refused to allow the defence lawyer in a case of rape under the false promise of marriage and cheating to confront a prosecution witness with two documents, which included a photograph of the alleged scene of the offence and a site plan prepared by the Village Officer. The trial court stated that these documents did not originate from the witness and thus were outside the scope of Section 145 of the Evidence Act.
The High Court examined whether, under the new Bharatiya Sakshya Adhiniyam, 2023, a witness may be confronted with a document not authored or signed by them, and whether such confrontation falls within the permissible scope of cross-examination.
The Court noted that as per Section 5 of BSA, the circumstances that form the state of things under which the offence occurred for relevant facts.
“In a prosecution for the offence of rape, the building or the place where the sexual intercourse between the offender and the survivor took place, is one of the facts which constitute the state of things under which the occasion or cause of rape happened.” the Court noted.
The Court noted that the defence was entitled to question the owner of the building where the crime had taken place as to whether it corresponded to the premise leased to the accused.
“A photograph of the place of occurrence, which purportedly revealed the impossibility of the commission of rape there, cannot be said to be an irrelevant document.” the Court observed.
The Court reconciled conflicting Supreme Court rulings on objections to evidence during trial in Bipin Shantilal Panchal v. State of Gujarat [(2001) 3 SCC 1] and Criminal Trials Guidelines In re [(2021) 10 SCC 598], noting that while trial judges must decide objections immediately, such decisions must rest on a careful determination of relevance under the provisions of Bharatiya sakshya Adhiniyam.
Citing Anees v. State Govt. of NCT [2024 KHC 6256], ]the Court reiterated the fundamental purpose of cross-examination:
“The object of cross-examination is to impeach the accuracy, credibility and general value of the evidence, and to elicit suppressed facts which support the case of the cross-examining party.”
The Court thus allowed the petition and directed the trial judge to permit the defence to confront PW2(building owner) with the disputed documents. It further clarified the procedural consequences depending on whether the witness affirmed, denied, or expressed ignorance about the documents' authenticity.
Case Title: Anu C R v State of Kerala
Case No: Crl M C 7885/ 2025
Citation: 2025 LiveLaw (Ker) 658
Counsel for Petitioner: A Rajasimhan, Vykhari K U
Counsel for Respondent: Sudheer G