The court affirmed the right of the defense to confront witnesses with relevant documents during cross-examination, emphasizing the significance of the context of the testimony.

ORDER :

G. GIRISH, J.

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 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 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