- Indian Evidence Act, 1872- Section 3- Laximpat Choraria and ors. v. State of Maharashtra
- Bench: Justice M. Hidayatullah and Justice C.A Vaidialingam
Facts:
- The three appellants were convicted under section 120B I.P.C. and Section 67(81) of the Sea Customs Act for having entered into a criminal conspiracy among themselves and with a Chinesecitizen in Hong Cong to smuggle gold into India with the,help of Ethyl, an Airlines stewardess.Ethyl gave evidence at thetrialas a witness for the prosecution.
- Her testimony was clearly that of an accomplice. Although she could have been prosecuted, she was not arraigned and it is was testimony which was in question
- The conspiracy was headed by YauMockchi who in a sense was the brain behind the whole racket. The discovery with him of the visiting card and photograph of Laxmipat and the photograph and addresses of Balchand was an incriminating circumstance as Ethyl Wong was connected with YauMockchi on the one hand and these brothers at the other.
- Further letters and writings of all the brothers were seized which were related to the conspiracy. Unfortunately, the originals were not available at the trial but only photostats of the letters. The use of the photostats without the originals was questioned.
- The evidence of Ethyl Wong was also questioned in respect of the identification of Laxmipat and Balchand because she was shown their photographs before her statement was taken. The use of the photostats without the originals was also questioned and it is submitted that these documents should be excluded.
Issues:
The primary issue before the court was whether Ethyl was a competent witness and her evidence was also questioned in respect of the identification of Laxmipat and Balchand. Secondly, the issue was whether photostats can be used without originals.
Background:
Appeals and revision application was filed against the conviction, in the Bombay High Court. The HC convicted the three appellants under Section 120B I.P.C. and Section 167(81) of the Sea Customs Act for having entered into acriminal conspiracy among themselves and with a Chinesecitizen in Hong Cong to smuggle gold into India. Further the appellants, however chose to challenge the judgement of High Court in the Supreme Court which is accorded in the decision below.
Judgment:
The court held that Ethyl Wong was a competent witness. Under Section 118 of the Indian Evidence Act all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them for reasons indicated in that section. Under Section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind.The safeguard to this compulsion is that no such answer, which the witness is compelled to give, exposes him to any arrest or prosecution or can it be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. The evidence of Ethyl Wong cannot be ruled out as that of an incompetent witness. Since Ethyl Wong was a self-confessed criminal, in conspiracy with others who were being tried, her evidence was accomplice evidence.
Further, the court held that photostats were proved to be genuine photographs of the letters.It stated 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 safeguards indicated, to prove the authorship.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 originals having been suppressed by the accused, were not available.
It stated that 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.
The appeal was dismissed.
