Accused Can Confront Witness With A Document Bearing Contradictory Statements During Cross-Examination: Kerala High Court

The Kerala High Court on Wednesday held that an accused has every right to confront a witness with a document during the cross-examination of such witness before the court, especially if such document is a previous statement given by the same witness. 

Justice Kauser Edappagath added that it was not necessary to produce the document in advance before the court and that such a mandate would deprive the element of surprise involved in the same. 

"The accused has every right to confront a document to the witness during the examination of the witness. If the accused is directed to produce the document in advance, the surprising element will be lost. It is settled that a document confronted to a witness during the cross examination, especially relating to a previous statement given by the witness, need not be produced in court in advance."

The petitioner allegedly kissed his 11-year-old stepdaughter on the lips and stuck his tongue in her mouth. Accordingly, he was booked under Sections 354, 341, 323 of IPC and Sections 7 r/w 8 and 9 r/w 10 of the POCSO Act.

Before the Special Court, the minor girl and her mother were examined as prosecution witnesses. During the trial, the counsel for the petitioner attempted to confront the mother with a contradictory statement from her previous divorce petition by producing a certified copy of this divorce petition before her. 

However, the trial court denied the opportunity for the same citing that the document has to be produced in the office of the court. When this was done, the trial court apparently said that the document has to be produced three days in advance. The petitioner's counsel was not even permitted to put questions regarding this statement to the witness later on. 

Aggrieved by the same, the petitioner approached the High Court seeking a direction to permit him to cross-examine the mother about her previous statement in her divorce petition without insisting on producing it in advance.

Advocate Renjith B. Marar appeared for the petitioner and Senior Public Prosecutor P.G.Manu appeared for the State. 

The Court found that the relationship between the petitioner and the mother was strained and that matrimonial disputes were pending between them. 

After analysing the facts, Justice Edappagath held that the accused has every right to confront a document to the witness during cross-examination and that it need not be produced before the court in advance. 

In these circumstances, the Judge opined that the stand taken by the trial court was not in accordance with law.

However, since the document has already been produced at the trial court, the petition was disposed of with a direction to recall the mother and let the petitioner's counsel re-examine her by confronting the contradictory portions in the statement in her divorce petition.

Case Title: XXX v. State of Kerala 

Citation: 2022 LiveLaw (Ker) 383

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