HOW TO APPRECIATE PHOTOGRAPH?
26. On the whole, we think that if the court is satisfied that there is no trick photography and the photograph is above suspicion, the photograph can be received in evidence. It is, of course, always admissible to prove the contents of the document, but subject to the safe guards indicated, to prove the authorship. This is all the more so in India under s. 10 of the Evidence Act to prove participation in a conspiracy. Detection and proof of crime will be rendered not only not easy but sometimes impossible if conspirators begin to correspond through photographs of letters instead of originals. Many conspiracies will then remain unproved because one of the usual methods is to intercept a letter, take its photograph and then to send it on and wait for the reply. But evidence of photographs to prove writing or handwriting can only be received if the original cannot be obtained and the photographic reproduction is faithful and not faked or false. In the present case no such suggestion exists and the original shaving been suppressed by the accused, were not available. The evidence of photographs as to the contents and as to handwriting was receivable.
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HOW TO INVESTIGATE WITNESS TO IDENTIFY THE PHOTOGRAPH OF THE ACCUSED?
28. The next question is whether Ethyl Wong’s identification of Laxmipat and Balchand, whose photographs were shown to her at the Air Terminal at Bombay should be accepted. Reference in this connection has been made to English cases in which it has been laid down that the showing of a large number of photographs to a witness and asking him to pick out that of the suspect is a proper procedure but showing a photograph and asking the witness whether it is of the offender is improper. We need not refer to these cases because we entirely agree with the proposition. There can be no doubt that if the intention is to rely on the identification of the suspect by a witness, his ability to identify should be tested without showing him the suspect or his photograph, or furnishing him the data for identification. Showing a photograph prior to the identification makes the identification worthless. If the prosecution had to rely on the identification by Ethyl Wong to fix the identity of the suspects, the fact that photographs were shown would have materially affected the value of identification. But the prosecution was not required to rely on Ethyl Wong’s identification. It had other evidence on this point. Further, before Ethyl Wong had seen the photographs she had given the names and description of the suspects. In addition to identifying the suspects from the photograph, Ethyl Wong had shown the flat in Bombay and the record of telephone calls at her hotel showed that she was in touch with the suspect in Bombay. Again, she spoke of the suspect at Calcutta and gave a description of the visiting card without having seen it. This visiting card is blue in colour and has the device in the left hand corner of a heart with a Swastika as an inset in the heart. When she pointed out the flat, she was accompanied by a customs officer who did not even know what it was all about. It is also significant that Balchand’s photograph was demanded from Hong Kong. It was also said that if the photograph was not available, address and telephone number would do. In Yau Mockchi’s possession photographs, addresses and visiting cards were found. There are other letters which speak of certain goods to be brought and the account books show that they were sent from Hong Kong. One significant article is a Rolex watch which was asked for and was bought in Hong Kong. The letters themselves and the account of gold purchased etc. and the commission paid speak volumes. Gold was described as ‘lali’ and its fineness and price were mentioned. To refer to gold as ‘lali’ in the letters was to employ a childish code which is easily broken when one sees the weight of ‘lali’ in tolas, the price and the fineness. The internal evidence of the letters furnishes all necessary clues to the identity and inter-relation of the several conspirators. No wonder the identity of the writers and recipients of the letters was not specially challenged in the High Court.
PARTY: LAXMIPAT CHORARIA AND OTHERS vs. STATE OF MAHARASHTRA – 14-12-1967 – 1968 SCR (2) 624.
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