Is Anu C.R. v. State of Kerala Correctly Decided? Can a Witness be Confronted with a Photograph During Cross-Examination Without its Prior Production?

Saji Koduvath, Advocate, Kottayam

Preface

The Kerala High Court, in Anu C.R. v. State of Kerala, 2025(7) KHC 150; 2025(6) KLT (SN) 2 (G. Girish, J.), allowed the defence counsel to confront a prosecution witness with a photograph of the alleged scene of occurrence and inquire whether the photograph represented the interior of the building concerned.

The Facts and Legal Principles Assume Significance

At the outset, the following facts and legal principles assume significance:

The court merely permitted the defence counsel to confront a prosecution witness, during cross-examination, with a photograph of the alleged place of occurrence.
If the photograph does not qualify as an “electronic record” or a “computer output”, the provisions contained in Sections 61 to 63 of the Bharatiya Sakshya Adhiniyam, 2023, have no application. In any case, the Court was not called upon to consider the applicability of Sections 61 to 63 of the Bharatiya Sakshya Adhiniyam, 2023.
If the photograph is used solely for the purpose of confronting a witness during cross-examination, the mere fact that the witness admits its correctness does not render it liable to be marked as an exhibit. By analogy to the principle underlying Section 148, BSA (Section 145, Evidence Act), material employed only for confrontation does not become substantive evidence merely because the witness accepts its correctness.
However, the fact that a photograph is capable of being used merely for confronting a witness does not preclude its admission in evidence. Where the witness admits that the photograph correctly depicts the person, place or object portrayed therein, the court may admit and mark the photograph as an exhibit on the basis of such admission, particularly if it is prepared to draw the presumption contemplated under Section 119 of the Bharatiya Sakshya Adhiniyam, 2023.
The Bharatiya Sakshya Adhiniyam, 2023, like the Evidence Act, 1872, contains no express provision dealing with the use of photographs for confronting a witness during cross-examination. The statutory scheme principally addresses cross-examination concerning previous statements and matters in writing (Section 147 and 148 of the Adhiniyam), leaving the admissibility and use of photographs to be governed by general principles of evidence and judicial discretion.

The Kerala High Court, in Anu C.R. v. State of Kerala, held as under:

“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 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.”

Objections Raised Against Marking of Photograph and Site Plan

The objections raised, in Anu C.R. v. State of Kerala, against the marking of the photograph and site plan were the following:

“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”.
“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.”

Law Relied on by HC to say that Trial/Sessions Judge Went Wrong

The Three Judge Bench of the Supreme Court in Anees v. State Government of NCT (DY Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.), AIR 2024 SC 2297; 2024-6 SCR 164; 2024 KHC 6256, held as under:

“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.”

Legal Principles Lend Support to the Kerala High Court View

The following legal principles lend support to the view taken by the Kerala High Court:

1. Section 148, BSA

Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 (Section 145, Evidence Act) enables to contradict witnesses with his previous statements:
- “Without such writing being shown to him”.
Here, the materials are “shown” and asked.

2. Section 141, BSA

Section 141(2) and (3) of the BSA [Section 136 (2) and (3), Evidence Act] reads as under:
- “(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
- (3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

(If the court permitted the cross-examiner to proceed, without raising objection by the court, it can be presumed that the party has ‘undertaken’ to give proof of such fact, “and the Court is satisfied with such undertaking”.)

Summary and Conclusion

The use of a photograph during cross-examination does not invariably amount to proving the photograph in evidence. Nor does it necessarily involve the doctrine of refreshing memory embodied in Section 162 of the BSA. A photograph may be shown to a witness merely for the purpose of identification, clarification, testing the accuracy of his testimony, or confronting him with a particular factual situation. In such cases, the photograph functions only as an aid in the examination of the witness and not as substantive evidence.

However, where the witness admits that the photograph correctly depicts the person, place or object portrayed therein, and the Court is prepared to draw the presumption contemplated under Section 119, BSA, the photograph may be admitted in evidence and marked as an exhibit on the basis of such admission.

End Notes

Person Sees a Display (in Court) may Give Evidence (as to the Place and Persons)

In Taylor v. Chief Constable of Cheshire, (1986) 1 WLR 1479 : (1987) 1 All ER 225: 84 Cr App R 191 (DC), it was held that a video recording of an incident which is in issue is admissible; and a witness who sees an incident on a display or a recording may give evidence (as to the place and persons) of what he sees in the display or a recording.

In Halsbury’s Laws of England [Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure], dealing with Chapter – “Documentary and Real Evidence”, it is stated as under:

“A video recording of an incident which is in issue is admissible [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.]. There is no difference in terms of admissibility between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of what the camera has filmed. A witness who sees an incident on a display or a recording may give evidence of what he saw in the same way as a witness who had a direct view [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr. App. Rep 191, DC. As to the admissibility of video recordings as evidence identifying the defendant, see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the identification of the defendant by still photographs taken by an automatic security camera, see R. v. Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr. App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA..”
(Quoted in: P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1)

Witness Acquainted with a person, Scene, etc. can Testify Photo and Video

Indian courts have accepted the “pictorial testimony” approach, under which a photograph may be authenticated by a witness having personal knowledge of the person, place, object, or scene depicted therein and who can testify that the photograph is a fair and accurate representation of what he observed.

Examination of the photographer is not an indispensable requirement in every case. The principle finds support in

Santhosh Madhavan @ Swami Amritha Chaithanya v. State of Kerala, 2014 Ker HC 31
P. Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551.

Should Photographer Necessarily be Examined?

No. In Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551, the question came for consideration included the following –

“The photograph (Ex. Kha-1) was not admissible in evidence as neither the person who took the photograph nor its negative was produced in evidence.”

The Court considered it and accepted the photograph observing as under:

“A photograph of the deceased (Ex. Kha 1), regarding which no dispute was raised by the prosecution witnesses, showing her alone with a male stranger, had surfaced. In the statement under Section 313 CrPC, a stand was taken that this photograph had shamed her. ….”

Is Anu C.R. v. State of Kerala Correctly Decided? Can a Witness be Confronted with a Photograph During Cross-Examination Without its Prior Production?

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