Photograph Of Place Of Occurrence Revealing Impossibility Of Commission Of Rape Not Irrelevant Document; Accused’s Counsel Can Question Witness By Showing Same: Kerala High Court

The petition before the High Court was filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by the accused booked in a criminal case of rape.

The accused challenged 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 to confront a witness during cross-examination by showing two documents.

The Single Bench of Justice G. Girish held,“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 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.”

Advocate A. Rajasimhan represented the Petitioner, while Public Prosecutor Sudheer. G represented the Respondent.

Factual Background

The offences alleged against the accused were rape under the false promise of marriage and cheating, coming under Section 376(2)(n) and Section 420 I.P.C. One of the places where the accused allegedly indulged in a sexual relationship with the survivor by giving the false promise of marriage was the ground floor of a building, which the second witness in question leased out to the accused for conducting a stitching unit. During the cross-examination of the second witness, the 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. The witness did not answer about the area of that building, but he stated that he did not know how many stitching machines were in that building.

The counsel for the accused attempted to confront that witness by showing a photograph which was the interior portion of that shop room containing various stitching machines. The Additional Sessions Judge refused permission to proceed with the cross-examination on the basis of the said document, stating the reason that the photograph was not about the witness, or made by the witness, and it did not fall within the purview of Section 145 of the Evidence Act. The defence counsel also made an attempt to confront the second witness by showing the site plan prepared by the Village Officer, which formed a part of the prosecution records, but the same was also refused by the Additional Sessions Judge, stating the reason that the aforesaid site plan was not prepared by that witness. Aggrieved thereby, the accused appraoched the High Court.

Reasoning

The Bench, at the outset, explained that as per Section 143(2) of the Bharatiya Sakshya Adhiniyam, 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 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”, it added.

As per the Bench, 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. Moreover, 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.

The Bench was of the view that the counsel for the accused was 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 foresaid site plan was in respect of the building which he had leased out to the accused.

Referring to the judgments of the Apex Court, the Bench held, “...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).

“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 portion of the building where the incident is said to have happened and also by showing the site plan prepared by the Village Officer”, the Bench noted.

Thus, allowing the Petition, the Bench ordered, “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.”

Cause Title: Anu. C.R. v. State of Kerala (Neutral Citation: 2025:KER:76538)

Appearance

Petitioner: Advocates A. Rajasimhan, Vykhari.K.U.

Respondent: Public Prosecutor Sudheer. G

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