Introduction:

In the landmark judgment of Anu C R v. State of Kerala (Crl M.C. 7885/2025; 2025 LiveLaw (Ker) 658), the Kerala High Court, through Justice G. Girish, clarified an important aspect of criminal procedure and evidence law — the scope of cross-examination under the newly enacted Bharatiya Sakshya Adhiniyam, 2023 (BSA). The decision arose from a criminal miscellaneous petition challenging the order of the Additional Sessions Judge, Ernakulam, who had refused to permit the defence counsel in a case involving allegations of rape under the false promise of marriage and cheating to confront a prosecution witness with two documents — a photograph of the alleged place of occurrence and a site plan prepared by the Village Officer. The trial court had ruled that since the documents were not authored or signed by the witness, they could not be shown to the witness under Section 145 of the Indian Evidence Act, now replaced by corresponding provisions in the Bharatiya Sakshya Adhiniyam. The High Court was therefore called upon to decide whether, under the new evidentiary law, a defence counsel can confront a witness with documents that are relevant to the facts in issue even if those documents do not originate from the witness.

Arguments of the Petitioner (Defence):

The petitioner’s counsel, Advocate A. Rajasimhan assisted by Advocate Vykhari K.U., argued that the trial court had adopted an unduly narrow interpretation of the provisions governing cross-examination and confrontation of witnesses. It was contended that under both the Indian Evidence Act and the Bharatiya Sakshya Adhiniyam, the purpose of cross-examination is not limited to questioning a witness about documents they personally authored, but also extends to confronting them with materials that are relevant to testing their credibility, verifying facts in issue, or exposing inconsistencies in their testimony. The petitioner emphasized that the documents sought to be used — a photograph of the alleged crime scene and a site plan — were directly connected to the prosecution’s version of events and essential to the defence’s theory that the alleged rape could not have taken place in the described location. It was further submitted that the trial court’s refusal to allow confrontation amounted to a violation of the accused’s constitutional right to a fair trial under Article 21 of the Constitution, as it curtailed the defence’s opportunity to effectively challenge the prosecution’s evidence.

The petitioner also relied heavily on judicial precedents, including the Supreme Court’s pronouncement in Bipin Shantilal Panchal v. State of Gujarat [(2001) 3 SCC 1], which emphasized that trial courts must adopt a liberal approach in the admission of evidence subject to relevance, and later evaluate its admissibility at the final stage rather than obstructing the defence prematurely. The counsel argued that by refusing to allow the witness to be confronted with the documents, the trial court had effectively deprived the defence of its most critical tool — the ability to test the credibility and reliability of the prosecution’s evidence through confrontation. The petitioner thus prayed for the impugned order to be set aside and the defence to be permitted to confront the witness with the relevant documents during cross-examination.

Arguments of the Respondent (Prosecution):

Opposing the petition, the learned counsel for the respondent, Advocate Sudheer G., contended that the trial court had correctly interpreted the scope of confrontation under the Bharatiya Sakshya Adhiniyam, 2023. The prosecution argued that Section 145 of the Indian Evidence Act — now replaced by corresponding provisions in the new Adhiniyam — traditionally applied only to the cross-examination of a witness concerning prior written statements made or signed by that witness. Since the two documents in question were not prepared, signed, or authored by the witness (PW2), confronting the witness with them would serve no legitimate evidentiary purpose and could only confuse or mislead the witness. The prosecution maintained that the proper way to bring such documents on record was by examining the individuals who created or authenticated them — for example, the Village Officer who prepared the site plan or the photographer who took the photograph — rather than confronting a witness who had no direct connection with them.

The respondent further argued that the trial court had not completely barred the defence from relying on the documents but had merely ruled that they could not be used to confront a particular witness. It was submitted that allowing every defence counsel to confront witnesses with any document of their choosing, regardless of authorship, would render trials unmanageable and open to abuse. The prosecution thus defended the trial court’s discretion and urged the High Court to dismiss the petition.

Court’s Observations and Findings:

Justice G. Girish, after carefully examining the rival submissions and the provisions of the Bharatiya Sakshya Adhiniyam, 2023, began by identifying the central issue — whether a witness may be confronted with documents not authored by them, and whether such confrontation falls within the permissible scope of cross-examination. The Court referred to Section 5 of the Bharatiya Sakshya Adhiniyam, which defines “relevant facts” as those that form the “state of things under which the facts in issue occurred.” Applying this principle, the Court reasoned that in a prosecution for rape, the physical location or premises where the alleged offence took place constitutes one of the facts forming the “state of things” under which the crime occurred. Hence, any material, such as photographs or site plans depicting that location, would be relevant to determining whether the alleged sexual act could have physically taken place there.

The Court observed that the purpose of cross-examination is not limited to confronting witnesses with their prior statements but extends to testing the truthfulness, credibility, and accuracy of their testimony by putting to them relevant facts or materials. The High Court cited with approval the observation made in Anees v. State Govt. of NCT [2024 KHC 6256], where it was held that “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.” In this context, Justice Girish clarified that photographs or site plans that depict the place of occurrence could be used to confront a witness who claims ownership or possession of the premises to verify whether the location in the photograph corresponds to the one described in testimony.

The Court emphasized that the refusal of the trial court to allow such confrontation on the ground that the documents were not authored by the witness was legally untenable. It held that relevance, and not authorship, is the key criterion for determining whether a document may be used in cross-examination. If the document relates to a fact in issue or a relevant fact, it can be legitimately shown to the witness for clarification, contradiction, or corroboration.

Justice Girish also took note of the apparent confusion created by differing interpretations in earlier rulings of the Supreme Court regarding the timing and handling of objections to evidence. The Court discussed Bipin Shantilal Panchal v. State of Gujarat (2001), which recommended that objections to admissibility be recorded and deferred until final arguments, and the more recent Criminal Trials Guidelines In Re [(2021) 10 SCC 598], which directed trial judges to decide objections to evidence immediately when raised. The Kerala High Court reconciled these two lines of authority by holding that while objections to relevance must be decided at the time they arise, such decisions must be made carefully, with full appreciation of the purpose and context of cross-examination. The Court observed that the trial court’s mechanical rejection of the defence’s request without assessing the documents’ relevance was inconsistent with the spirit of the Bharatiya Sakshya Adhiniyam, which places emphasis on the probative value of evidence in establishing the truth.

Applying these principles to the facts of the case, the High Court found that the two documents sought to be used — a photograph of the alleged place of occurrence and a site plan prepared by the Village Officer — were indeed relevant. The photograph, according to the defence, showed that the alleged act of rape could not have been committed in that location due to its structural features. The site plan, meanwhile, was a government record prepared by a public official, showing the layout of the building and surroundings. Both documents were directly related to determining whether the crime could have taken place as alleged. Therefore, the Court concluded that the trial court’s refusal to permit confrontation was erroneous.

Judgment of the Court:

The Kerala High Court allowed the criminal miscellaneous petition and set aside the impugned order of the Additional Sessions Judge, Ernakulam. It directed the trial court to permit the defence counsel to confront PW2, the building owner, with the photograph and site plan during cross-examination. However, the Court also issued procedural directions on how the trial court should handle the confrontation process depending on the witness’s response. If the witness admitted that the documents correctly represented the premises, they could be treated as proved and marked accordingly. If the witness denied or expressed ignorance about the documents, the defence would still be entitled to later prove the authenticity of those documents through the appropriate witnesses or evidence.

The Court reiterated that the right of the accused to cross-examine prosecution witnesses effectively is a fundamental aspect of a fair trial, protected under Article 21 of the Constitution of India. Restricting this right without proper justification would amount to denial of due process. Justice Girish concluded by reminding trial courts that the Bharatiya Sakshya Adhiniyam, 2023, represents a progressive evolution of evidentiary law intended to balance procedural fairness with truth-seeking, and hence must be interpreted liberally in favor of ensuring justice.

With these observations, the Kerala High Court allowed the petition, clarified the law on confrontation of witnesses with relevant documents under the Bharatiya Sakshya Adhiniyam, and reaffirmed the broad scope of the defence’s rights during cross-examination.