Kerala High Court
Anu.C.R vs State Of Kerala on 16 October, 2025
2025:KER:76538
Crl.M.C.No.7885/2025 1
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 16TH DAY OF OCTOBER 2025 / 24TH ASWINA, 1947
CRL.MC NO. 7885 OF 2025
CRIME NO.1505/2021 OF Ernakulam North Police Station,
Ernakulam
SC NO.1073 OF 2022 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT (VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM
PETITIONER/ACCUSED:
ANU.C.R.
AGED 51 YEARS
S/O LATE RAVINDRAN, CHANAYIL HOUSE, PAUL
THERUVILPARAMBIL ROAD, KUMBALANGI VILLAGE.P.O.,
ERNAKULAM, PIN - 682007
BY ADVS.
SRI.A.RAJASIMHAN
KUM.VYKHARI.K.U
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
SRI SUDHEER.G, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
26.09.2025, THE COURT ON 16.10.2025 PASSED THE FOLLOWING:
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Crl.M.C.No.7885/2025 2
ORDER
The refusal of the Additional Sessions Judge dealing with the trial
of cases relating to atrocities and sexual violence against women and
children, Ernakulam, to permit the defence lawyer in S.C No.1073/2022
to confront PW2 during cross-examination by showing two documents,
is under challenge in this petition filed by the accused in that case
under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
2. The offences alleged against the accused are rape under
the false promise of marriage and cheating, coming under Section
376(2)(n) and Section 420 I.P.C respectively. One of the places where
the accused allegedly indulged in sexual relationship with the survivor
by giving the false promise of marriage, is the ground floor of a
building which PW2 leased out to the accused for conducting a
stitching unit. During the cross examination of PW2, the learned
counsel for the accused asked about the area and other peculiar
features of the aforesaid building portion which he had leased out to
the accused. Though PW2 answered about the area of that building
and also its nature, he stated that he does not know how many
stitching machines were there in that building. At that time, the
learned counsel for the accused attempted to confront that witness by
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showing a photograph which was purportedly the interior portion of
that shop room containing various stitching machines. The learned
Additional Sessions Judge refused permission to proceed with the cross
examination on the basis of the said document, stating the reason that
the aforesaid photograph is not pertaining to the witness, or made by
the witness, and it is not falling within the purview of Section 145 of
the Evidence Act. Another attempt made by the learned defence
counsel to confront PW2 by showing the site plan prepared by the
Village Officer, which formed part of the prosecution records, was also
refused by the learned Additional Sessions Judge stating the reason
that the aforesaid site plan is not prepared by that witness. Aggrieved
by the above interference on the part of the learned Additional
Sessions Judge, the accused has filed the present petition before this
Court for passing appropriate orders for redressing his grievance.
3. Heard the learned counsel for the petitioner and the
learned Public Prosecutor representing the State of Kerala.
4. As per Section 143(2) of the Bharatiya Sakshya Adhiniyam,
2023 (BSA, 2023), the examination-in-chief and the cross-examination
must relate to relevant facts, but the cross-examination need not be
confined to the facts to which the witness testified on his examination
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in chief. The aforesaid section corresponds to the second part of
Section 138 of the Indian Evidence Act, 1872. As per Section 5 of the
BSA, 2023 (Section 7 of Indian Evidence Act, 1872), facts which are
the occasion, cause or effect, immediate or otherwise, of relevant
facts, or facts in issue, or which constitute the state of things under
which they happened, or which afforded an opportunity for their
occurrence or transaction, are relevant. 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. Likewise, as per Section 7 of BSA ( Section 9 of
Indian Evidence Act ), facts necessary to introduce a fact in issue or
relevant fact, or which support or rebut an inference suggested by a
fact in issue or relevant fact, or which fix the time or place at which
any fact in issue or relevant fact happened are relevant insofar as they
are necessary for that purpose. Thus, 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. When viewed in the above perspective, the questions put
to the owner of the building where the crime is said to have taken
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place, as to whether the photograph and the plan shown to him
related to the building which he leased out to the accused, cannot be
said to be irrelevant. The learned Additional Sessions Judge cannot
disallow a question put by the learned counsel for the accused to PW2,
by showing the photo of interior of the building in which the alleged
incident is said to have happened, as to whether it is the building
portion which the witness had leased out to the accused. If the
witness gives an affirmative answer to the above question, and says
that it is the very same building portion which he had leased out to the
accused, then the learned defence counsel will be justified in insisting
for the marking of that photograph, though it had not been produced
by him earlier, provided the necessary formalities for its production are
complied immediately thereafter. On the other hand, if the witness
says, by perusing that photograph, that he is not in a position to say
as to whether it is the portion of the building which he had leased out
to the accused, the learned counsel for the accused cannot thereafter
insist for further questions on the basis of that document. Likewise,
the learned counsel for the accused is entitled to show the site plan
prepared by the Village Officer, and produced from the part of the
prosecution, to the witness and ask the question as to whether the
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aforesaid site plan was in respect of the building which he had leased
out to the accused. If an affirmative answer is given by the witness,
then the learned counsel would be entitled to ask further questions
pertaining to the aforesaid plan and also to get that document marked.
But, since the document is one produced from the part of the
prosecution, it has to be marked as a prosecution document, marked
at the instance of the accused. If the witness says that he is not able
to say anything about the plan so prepared by the Village Officer, then
the learned counsel for the accused cannot insist on recording further
questions on that point.
5. The course of procedure to be adopted when an objection
is raised during evidence taking stage regarding the admissibility of
any material or item of oral evidence, has been dealt with by the
Hon'ble Apex Court in Bipin Shantilal Panchal v. State of Gujarat
[(2001) 3 SCC 1]. It has been held by the Hon'ble Supreme Court in
the aforesaid decision that when such objections are raised, the Trial
Court can make a note of such objection and mark the objected
document tentatively as an exhibit in the case (or record the objected
part of the oral evidence) subject to such objections to be decided at
the last stage in the final judgment. It has been further observed in
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that decision that if the court finds at the final stage that the objection
so raised is sustainable, the Judge or Magistrate can keep such
evidence excluded from consideration. However, a three Judge Bench
of the Hon'ble Supreme Court differed from the above view in
Criminal Trials Guidelines regarding inadequacies and
deficiencies, In re [(2021) 10 SCC 598] wherein it has been held
that if the above course laid down in Bipin Shantilal Panchal is
followed, irrelevant, vague and speculative answers would enter the
records cluttering it with a jumble of irrelevant details which at best
can be distracting, and at worst, prejudicial to the accused. Paragraph
No.15 of the above said decision is extracted hereunder for the sake of
convenience and easy reference:
"15. Apart from Section 148, there are other provisions
of the Evidence Act (Sections 149-154) which define the
ground rules for cross-examination. During questioning, no
doubt, the counsel for the party seeking cross-examination
has considerable leeway; cross-examination is not confined to
matters in issue, but extends to all relevant facts. However, if
the court is not empowered to rule, during the proceeding,
whether a line of questioning is relevant, the danger lies in
irrelevant, vague and speculative answers entering the record.
Further, based on the answers to what (subsequently turn out
to be irrelevant, vague or otherwise impermissible questions)
more questions might be asked and answered. If this process
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were to be repeated in case of most witnesses, the record
would be cluttered with a jumble of irrelevant details, which at
best can be distracting, and at worst, prejudicial to the
accused. Therefore, this Court is of opinion that the view in
Bipin Shantilal Panchal [Bipin Shantilal Panchal v. State of
Gujarat, (2001) 3 SCC 1 : 2001 SCC (Cri) 417] should not be
considered as binding. The Presiding Officer therefore, should
decide objections to questions, during the course of the
proceeding, or failing it at the end of the deposition of the
witness concerned. This will result in de-cluttering the record,
and, what is more, also have a salutary effect of preventing
frivolous objections. In given cases, if the court is of the
opinion that repeated objections have been taken, the remedy
of costs, depending on the nature of obstruction, and the
proclivity of the line of questioning, may be resorted to.
Accordingly, the practice mandated in Bipin Shantilal Panchal
[Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1 :
2001 SCC (Cri) 417] shall stand modified in the above terms."
6. In the light of the guidelines laid down by the Hon'ble Apex
Court in the aforesaid decision, the Trial Court has to decide then and
there about the admissibility of the documents sought to be brought in
evidence, when the witness is cross-examined by confronting him
with regard to the contents of such documents. However, while
deciding the admissibility, due regard shall be there with regard to the
relevancy of such documents in the light of the pertinent provisions of
Bharatiya Sakshya Adhiniyam (Indian Evidence Act).
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7. In this context, an observation made by a Three Judge
Bench of the Hon'ble Supreme Court in paragraph 69 of the judgment
rendered in Anees v. State Government of NCT [2024 KHC
6256] assumes much relevance. The aforesaid observation is
extracted hereunder:
............"The object of the cross - examination is to
impeach the accuracy, credibility and general value of the
evidence given in - chief; to sift the facts already stated by the
witness; to detect and expose the discrepancy or to elicit the
suppressed facts which will support the case of the cross -
examining party."..........
8. Though the aforesaid dictum has been laid down by the
Apex Court while dealing with the duty of the Public Prosecutor to
cross-examine a hostile witness in detail and try to elucidate the truth
and also establish that the witness is speaking lie, the law laid down by
the Apex Court in the above matter has got relevancy in the
cross-examination done by the defence counsel as well.
9. Having regard to the position of law elucidated above, I am
of the view that the learned Additional Sessions Judge went wrong in
disallowing the counsel for the accused from proceeding with the
confrontation of PW2 by showing the photograph of the interior
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portion of the building where the incident is said to have happened
and also by showing the site plan prepared by the Village Officer.
In the result, the petition stands allowed as follows:
i) The learned Additional Sessions Judge is directed
to permit the counsel for the accused to confront PW2 by
showing the photograph of the interior of the building which
he had leased out to the accused (Annexure-A3) and to ask
whether it is the photograph of the interior portion of the
building which he had leased out to the accused.
ii) If the witness gives an affirmative answer to the
above question, the defence counsel shall be permitted to
ask further questions related to it, with due regard to its
relevancy, and to get the said document marked as an exhibit
on the part of the accused, subject to production of that
document immediately thereafter, following the formalities
prescribed in that regard.
iii) If the witness denied the above suggestion, or
says that he is not able to say anything on the basis of the
above document, the counsel for the accused need not be
permitted to proceed with further questions on that
document.
iv) The learned Additional Sessions Judge is directed
to permit the counsel for the defence to confront PW2 by
showing the site plan prepared by the Village Officer and ask
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whether the aforesaid document was the plan of the building
which he had rented out to the accused.
v) If the witness gives an affirmative answer to the
above question, then the defence counsel should be
permitted to ask further questions on that site plan, with due
regard to its relevancy, and also to admit the document as an
exhibit of the prosecution, marked at the instance of the
accused.
vi) If the witness denies the suggestion, or says that
he is not able to state anything about it, then the defence
counsel need not be permitted to ask further questions on
that document to that witness.
(Sd/-)
G. GIRISH, JUDGE
jsr
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PETITIONER ANNEXURES
Annexure A3 TRUE COPY OF THE PHOTOGRAPH
Annexure A4 TRUE COPY OF THE LIST OF DOCUMENTS FILED BY
THE PETITIONER
Annexure A5 TRUE COPY OF THE CERTIFICATE UNDER SECTION
OF 63 OF THE BHARATIYA SAKSHYA ADHINIYAM,
Annexure A6 TRUE COPY OF THE DEPOSITION OF PW2
