PETITIONER:
LAXMIPAT CHORARIA AND ORS.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT:
14/12/1967
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
VAIDYIALINGAM, C.A.
CITATION:
1968 AIR 938 1968 SCR (2) 624
CITATOR INFO :
F 1988 SC1531 (120)
R 1989 SC 598 (13)
ACT:
Evidence Act, 1872, ss. 118, 132, 133-Criminal Procedure
Code, 1898, ss. 337, 338, 342(4) and 494-Indian Oaths Act,
s. 5-Appellants convicted under s. 120B and s. 167(81) of
Sea Customs Act of smuggling-Accomplice giving evidence not
prosecuted-Whether prosecution or Magistrate bound to
arraign accomplice where complaint by Assistant Collector
excludes him-Upon failure to make accomplice an accused if
he can be competent witness–Photostat copies of documents-
When admissible evidence.
Constitution of India, Art. 14-Taking accomplice evidence by
using s. 494 Cr. P.C. if constitutional.
HEADNOTE:
The three appellants were convicted under s. 120B I.P.C. and
S. 167(81) of the Sea Customs Act for having entered into a
criminal conspiracy among themselves and with a Chinese
citizen in Hong Cong to smuggle gold into India with the,
help of E, an Airlines stewardess. E gave evidence at the
trial as a witness for the prosecution. Her testimony was
clearly that of an accomplice and although she could have
been prosecuted, she was not arraigned. It was contended,
inter alia, on behalf of the appellants (i) that it was the
duty of the prosecution and/or the Magistrate to have tried
E jointly with the appellants and the breach of this
obligation vitiated the trial; in the alternative, E’s
testimony must be excluded from consideration and the appeal
re-heard on the facts; (ii) that no oath could be adminis-
tered to E as she was an ‘accused person in ’a criminal
proceeding’ within the meaning of s. 5 of the Indian Oaths
Act as shown by her own statements made to the Customs
officials and in Court; she could not therefore be examined
as a witness; furthermore, the provisions relating to tender
of pardon to accomplices contained in Chapter XIV of the
Criminal Procedure Code do not apply to offences under s.
120B (first Part) I.P.C. and s. 168 (81) of the Sea Customs
Act; the only ways in which E’s testimony could have been
obtained was either to, take her plea of guilty and convict
and sentence her or withdraw the prosecution against her
under s. 494 Cr. P. C. Not to send up a person for trial
with the sole object of taking accomplice evidence is
illegal. Furthermore, under s. 351 read with s. 91 of the
Code it was the duty of the Court to. have detained E and
included her in the array of accused before it; (iii) the
evidence of E in respect of the identification of two of the
appellants was inadmissible because she had been shown “heir
photographs before her statements were taken; (iv) the
photostats of certain document’s without the production of
the originals were wrongly admitted and -should have been
excluded; and (v) selection, of E as once out of several
accused “,,is discriminatory.
HELD : dismissing the appeal,
(i) The offences were non-cognizable and were investigated
by Customs officers under the Sea Customs Act and not by the
Police under Chapter XIV of the Code. Therefore, no
question of the application of ss. 169 and 170 arose. The
accused were placed on trial on the complaint of the
625
Assistant Collector of Customs under the authority of the
Chief Customs Officer, Bombay. Although the Magistrate was
taking cognizance of offences and not of offenders, it was
no part of his duty to find offenders in view of the bar of
s. 187A if the complaint did not name a particular offender.
All that the Magistrate could do was to take a bond from E
for her appearance in court if required. [629 C-E]
Under s. 118 of the Evidence Act, all persons are competent
to testify unles the court considers that they are prevented
from under-standing the questions put to them for reasons
indicated in that section. Under s. 132 a witness is not
excused from answering any relevant question upon the ground
that the answer will incriminate him or expose him to a
penalty of forfeiture of any kind and when compelled to
answer such question is protected ‘against arrest or
prosecution by the safeguard in the proviso to s. 132 as
well as in Art, 20(3). The evidence of E could not
therefore be ruled out, as that of an incompetent witness.
Since E was a self-confessed criminal, in conspiracy with
others who were being tried, her evidence was accomplice
evidence. S. 133 of the Evidence Act makes the accomplice a
competent witness against an -accused person. For this
reason also E’s testimony was that of a competent witness.
[630 B-H]
(ii) The competency of an accomplice is not destroyed
because he could have been tried jointly with the accused
but was not and was instead made to give evidence in ;the
case. Section 5 of the Indian Oaths Act and s. 342 of the
Code of Criminal Procedure do not stand in the way of such a
procedure.
If any accomplice is not prosecuted but is tendered as a
witness, the bar of the Indian Oaths Act ceases because the
person is not an accused person in a criminal proceeding.
The interrelation of s. 342(4) of the Code and s. 5 of the
Indian Oaths Act. both of which prohibited the giving of
oath or affirmation to an accused on trial is fully
evidenced by the simultaneous amendment of the Code in 1955
by which the right to give evidence on oath is conferred on
the accused and provisions in pari materia are made in s. 5
of the Oaths Act. The only prohibition against the use of
accomplice testimony exists in the rule of caution about
corroboration and the interdiction, of influence in any form
by s. 343 of the Code. If any influence by way of promise
of pardon has to be made, the provisions of ss. 337 and 338
or of the Criminal Law Amendment Act have to be observed.
That, however, applies to special kinds of cases of which
the present was not one. [632 F-H]
The expression, ‘criminal proceeding’ in the exclusionary
clause of s. 5 of the Indian Oaths Act cannot be used to
widen the meaning of ‘he word ‘accused’. The same
expression is used in. the proviso to s. 132 of the Indian
Evidence Act and there it means a criminal trial and not
investigation. The same meaning must be given to the
exclusionary clause of s. 5 of the Indian Oaths Act to
make it conform to the provisions in pari materia to be
found in ss. 342, 342A of the Code and s. 132 of the Indian
Evidence Act. The expression is also not rendered
superfluous because, given this meaning, it limits the
operation. of the exclusionary clause to criminal
Prosecutions as opposed to investigations had civil
proceedings. [633 D-F]
(iii) 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.
This is all the more so in India under s. 10 of the Evidence
Act
626
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. But evidence
of photographs to prove writing or handwriting can only be
received if the original cannot be obtained and the photo-
graphic 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.
The evidence of photographs as to the contents and as to
handwriting was receivable. [638 F-H]
(iv) If the prosecution had to rely only on the
identification by E to fix the identity of the suspects,
the, fact that their photographs were shown to her would
have materially affected the value of identification. How,-
ever there was considerable other evidence of identification
and the prosecution was not required to rely only on this
identification.
(v) Section 337 Cr.P.C. has been held not to offend Art. 14
and the matter of taking accomplice evidence outside s. 337
by using s. 494 or otherwise is not very different. It
cannot be held that there was any breach of the Constitution
in selecting E out of several accused to give evidence. [640
F]
Case law discussed.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 50-52
of 1964.
Appeals from the judgment and order dated January 17, 24,
1964 of the Bombay High Court in Criminal Appeals Nos. 961
to 963 of 1962.
A. K. Sen, R. Jethmalani, Jethmalani, Kumar M. Mehta, B.
Parthasarathy and J. B. Dadachanji, for the appellants (in
Cr. A. No. 50 of 1964).
R. Jethmalani, Kumar M. Mehta, Jethmalani and J. B. Dada-
chanji, for the appellants (in Cr. As. Nos. 51 and 52 of
1964).
K. G. Khandalawala, H. R. Khanna, B. A. Panda, R. H.
Dhebar and S. P. Nayar, for the respondent (in all the
appeals).
The Judgment of the Court was delivered by
Hidayatullah, J. The appellants who are three brothers
appeal ’by certificate against their conviction under S.
120-B of the Indian Penal Code and s. 167(81) of the Sea
Customs Act and the sentences of imprisonment and fine
respectively imposed on them. A ,fourth brother had filed
Criminal Appeal No. 55 of 1964 but did not press it at the
hearing. One other person (S. L. Daga) was also convicted
with them but has not appealed. These persons were found to
have entered into a criminal conspiracy among themselves and
with others including one Yau Mockchi, a Chinese citizen in
Hong Kong, to smuggle gold into India. The method adopted
was to insert strips of gold (about 250 tolas) under
the .lining of the lid of a suitcase, which could be
retrieved by
627
unscrewing the metal comer supports and pulling on strings
attached to the strips. The suitcases were brought into
India by air stewardnesses, and Ethyl Wong (P.W. 1), an
Anglo-Chinese girl employed by Air India, was one of them.
Discovery came, after gold was successfully smuggled on many
occasions, when Yau Mockch approached one Sophia Wong of the
B.O.A.C. line. She was en gaged to a police officer and
informed her superior officers. A trap was laid. Yau
Mockchi was caught with a suit-case with gold in it after he
had explained to Sophia how the gold was inserted and how it
could be taken out. On the search of his person and also of
his place of business, visiting cards of several persons
including those of Ethyl Wong and Laxmipat Choraria (Crl.
Appeal 50/64), photographs of Laxmipat and Balchand Choraria
(Crl. Appeal No. 52/64), their addresses and telephone num-
bers, and other incriminating letters, accounts, cables,
etc., were found. Immediately thereafter raids took place
in India and at Hong Kong where the other two accused who
are not before us (Kundanmal Choraria and S. L. Daga) were
running a firm called Global Agencies. Numerous documents
(some in simple code) and account books were seized. Many
of these documents were photostated. The originals were
unfortunately returned under the orders of the Supreme Court
of Hong Kong and have since been suppressed. On the
strength of these materials the prosecution was started.
At the commencement of the trial Ethyl Wong was examined as
the first witness and gave a graphic account of the
conspiracy and the parts played by the accused and her own
share in the transactions. Her testimony was clearly that
of an accomplice.. Although she could have been prosecuted,
she was not arraigned and it is her testimony which has been
the subject of a major part of the arguments before us. No
effort has been spared to have it excluded. In two other
appeals which we are deciding today with these appeals, the
evidence of the accomplices was also questioned on the same
grounds. For convenience the whole question has been
considered here. In these appeals it is, however, admitted
that if her evidence is received, it is sufficiently
corroborated both generally and in respect of the three
appellants before us. But the evidence of Ethyl Wong is
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 is also questioned and it is submitted that these
documents should be excluded. The main argument is that
Ethyl Wong could not be examined as a witness because (a) no
oath could be administered to her as she was an accused
person since s. 5 of the Indian Oaths Act bars such a course
and (b) it was the duty of the prosecution and/or the
Magistrate to have tried Ethyl Wong jointly with the
appellants..
L2SupCI./68-10
628
The breach of the last obligation, it is submitted, vitiated
the trial and the action was discriminatory. In the
alternative, it is submitted that even if the trial was not
vitiated as a whole, Ethyl Wong’s testimony must be excluded
from consideration and the appeal reheard on facts here or
in the High Court. It is further submitted that in any
event, Ethyl Wong’s evidence was so discrepant as to be
worthless. In the appeal of Balchand an additional point is
urged and it is that the incriminating documents against him
were compared with a letter Z 217 purported to be written by
him but not proved to be so written.
Since the appeals were argued mainly on law, we need not
trouble ourselves with the facts. Ethyl Wong admittedly
carried gold for Yau Mockchi on several occasions. She
admitted this in court and her evidence receives ample
corroboration as to the mode employed from the statement of
Sophia Wong and the seizure of the suitcase when Yau Mockchi
had explained how the gold was secreted. We may say at once
that if Ethyl Wong’s evidence is not to be excluded from
consideration for any reason, then we see no reason not to
believe her. Apart from the fact that the High Court and
the, court below have concurrently believed it already, we
find ample corroboration for it from her own previous
statements made without warning, her pointing out the flats
where she delivered gold, her cable written in code to
inform the parties in Hong Kong after successful smuggling,
her visiting card in the possession of Yau Mockchi, the
passenger manifests showing her trips, the entries in the
hotel registers and the telephone calls made by her to the
flat of the accused and so on and so forth. No doubt there
are some discrepancies in her account and she corrected her
first version on points on which she had made mistakes. But
this is explained by the fact that when she was first
accosted, she was unprepared and shocked by the discovery.
The corrections were made by her after reviewing in her mind
her past trips and without any prompting by the customs
authorities. Both statements were voluntary and without any
collusion on the part of the customs officials. On the
whole her testimony impressed us and as it has been accepted
by the High Court and the Magistrate we shall not go into it
for the third time. We shall accordingly address ourselves
to the objections to its admissibility and the propriety of
examining a self-confessed criminal as a witness against her
former associates.
The argument is that S. 5 of the Indian Oaths Act prohibits
the administering of oath or affirmation to an accused
person in a criminal proceeding and Ethyl Wong, by her own
statements made earlier to the customs officials and later
in court, showed herself to be the unknown carrier shown at
No. 12 of the complaint. It is, therefore, contended that
she could not be examined
629
as a witness. Next it is submitted that as the provisions
relating to tender of pardon to accomplices contained in
Chapter XXIV of the Code do not apply to offences under S.
120-B (First Part) of the Indian Penal Code and s. 168(81)
of the Sea Customs Act, the only two ways in which Ethyl
Wong’s testimony could have been obtained was either to take
her plea of guilty and convict and sentence her or to
withdraw the prosecution against her under s. 494, Indian
Penal Code. Not to send up a person for trial with the sole
object of taking accomplice evidence is said to be illegal.
Further it is argued that under s. 351 read with S. 91 of
the Code it was the duty of the Court to have detained Ethyl
Wong and included her in the array of accused before it. We
shall now consider these arguments.
The offences were non-cognizable and were not investigated
by the police. The investigation was by customs officers
under the Sea Customs Act and not by the police under
Chapter XIV of the Code. Therefore, no question of the
application of ss. 169 and 170 arose. Ethyl Wong’s
statements were obtained under S. 171-A of the Sea Customs
Act. The persons were placed for trial on the complaint of
the Assistant Collector of Customs under the authority of
the Chief Customs Officer, Bombay. Although the Magistrate
was taking cognizance of offences and not of offenders, it
was no part of his duty to find offenders in view of the bar
of s. 187A if the complaint did not name a particular
offender. All that the Magistrate could do was lo take a
bond from Ethyl Wong for her appearance in court if
required. At the time of Ethyl Wong’s examination the
appellants had raised the question that she should also be
tried. The Magistrate said that he would later consider the
matter. Then it appears to have been forgotten. Nor did
the appellants raise the question again. Apparently they
only wanted that Ethyl Wong should be tried jointly with
them so that her testimony might not be available against
them but were not interested in her separate trial.
In so far as the customs authorities are concerned it is
clear that they had some reason to think that Ethyl Wong
might be one of the carriers as her visiting -card was found
with 26 other such cards in Yau Mockchi’s possession. But
it was not certain that she was one of the carriers until
she was questioned or there was some other evidence against
her. The complaint was filed in court on April 6, 1960 and
the case was to commence on January 2, 1961. On December
27, 1960 Ethyl Won- landed at the Bombay Air Terminal. Two
customs officers were waiting for her and questioned her.
It was then that Ethyl Wong made her first statement (Ex. 1)
admitting her own share, in the smuggling racket set up by
Yau Mockchi. On December 29, 1960 she gave a second
statement (Ex. 2) and corrected certain inaccuracies in
630
her first statement. On January 2′, 1961 she was examined
as the first prosecution witness.
Now there can be no doubt that Ethyl Wong was a competent
witness. Under S. 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 S. 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. In other words,
if the customs authorities treated Ethyl Wong as a witness
and produced her in court, Ethyl Wong was bound to answer
all questions and could not be prosecuted for her answers.
Mr. Jethmalani’s argument that the Magistrate should have
promptly put her in the dock because of her incriminating
answers overlooks s. 132 (proviso). In India the privilege
of refusing to answer has been removed so that temptation to
tell a lie may be avoided but it was necessary to give this
protection. The protection is further fortified by Art.
20(3) which says ‘that no person accused of any offence
shall be compelled to be a witness against himself. This
article protects a person who is accused of an offence and
not those questioned as witnesses. A person who voluntarily
answer questions from the witness box waives the privilege
which is against being compelled to be a witness against
himself, because he is then not a witness against himself
but against others. Section 132 of the Indian Evidence Act
sufficiently protects him since his testimony does not go
against himself. In this respect the witness is in no worse
position than the accused who volunteers to give evidence on
his own behalf or on behalf of a coaccused. There too the
accused waives the privilege conferred on him by the article
since he is subjected to cross-examination and may be asked
questions incriminating him. The evidence of Ethyl Wong
cannot, therefore, 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. The word accomplice is ordinarily
used in connection with the law of evidence and rarely under
the substantive law of crimes. Accomplice evidence denotes
evidence of a participant in crime with others. Section 133
of the Evidence Act makes the accomplice a competent witness
against an accused person. Therefore, Ethyl Wong’s
testimony was again that of a competent witness. It has
been
631
subjected to scrutiny and the usual checks for corroboration
and was, therefore, received with due caution. The short
question that remains is whether she could be administered
an oath in view of the prohibition in s. 5 of the Indian
Oaths Act.
We have already shown above that Ethyl Wong was not an
saccused person at the trial. Now the Indian Oath Act
provides
“5. Oath or affirmation shall be made by the
following persons :
(a) all witnesses, that is to say, all
persons who may lawfully be examined or give,
or be required to give, evidence by or before
any court or person having by law or consent
of parties authority to examine such persons
or to receive evidence;
Nothing herein contained shall render it
lawful to administer, in a criminal
proceeding, an oath or affirmation to the
accused person unless he is examined as a
witness for the defence. . . . .
Mr. Jethmalani in interpreting the exclusionary clause
argues that every person against whom there is an accusation
(whether there be a prosecution pending against him or not)
is an accused person, more so a person against whom an
investigation is going on or has been made. In this
connection he has referred to those sections of the Code of
Criminal Procedure where the word ‘accused’ occurs and has
attempted to establish that sometimes the word is employed
to denote a person on trial and sometimes a person against
whom there is an accusation but who is not yet put on his
trail. He has also referred to the expression ‘in a
criminal proceeding’ which he says are words of sufficient
amplitude to -take in a person against whom an investigation
is to be made or has been made on an accusation. In either
case, he submits, the case of Ethyl Wong must fall within
the exclusionary clause.
There is no need to refer to the sections of the Code of
Criminal Procedure because it may safely be assumed that the
word ‘accused’ bears these different meanings according to
the context. That does not solve the problem of
interpretation of the same word in the Code for there it may
have been used in one of the two senses or both. The
historical reason behind the prohibition in the Indian Oaths
Act and s. 342 of the Code, need not be gone into either.
It is well-known that formerly a person on his trial could
not give evidence. At Common Law, the parties to a civil
action were not allowed to give evidence because of their
personal
632
interest and in criminal trials, the private prosecutor
could give evidence because he represented the Crown but not
the accused. The Common Law of England was altered by
statutory enactments between 1843 and 1898 and finally by
the Criminal Evidence Act 1898 the accused was allowed to
give evidence. The discomfiture of the first person to give
evidence on his own account while under cross-examination is
also well-known. He was literally convicted out of his own
mouth by the cross-examination by the Attorney General. In
India the right was first conferred by the Code of Criminal
Procedure Amendment Act XXVI of 195 5. This Amending Act
added s. 342A to the Code:
“342. Accused person to be competent witness.
Any person accused of an offence before a Cri-
minal Court shall be a competent witness for
the defence and may give evidence on oath in
disproof of the charges made against him or
any person charged together with him at the
same trial :
Provided that-
and added the words “unless he is examined as a witness for
the defence” to the exclusionary clause in s. 5 of the
Indian Oaths Act. Yet the provisions of s. 343 of the Code
continues that except as provided in ss. 337 and 338 of the
Code, no influence, by means of any promise or threat or
otherwise shall be used on an accused person to induce him
to disclose or withhold any matter within his knowledge.
The section prohibits influence in two ways in the making of
the disclosure and in the withholding of -the disclosure.
In other words, the prosecuting agency has to be neutral
unless it seeks to prosecute the person himself. If they do
not prosecute a particular person and tender him as a
witness, the bar of the Indian Oaths Act ceases because the
person is hot an accused person in a criminal proceeding.
The interrelation of s. 342(4) of the Code and s. 5 of the
Indian Oaths Act, which both prohibited the giving of oath
or affirmation to an accused on. trial is fully evidenced by
the simultaneous amendment of the Code in 1955 by which the
right to give evidence on oath is conferred on the accused
and provisions in pari materia are made in s. 5 of the Oaths
Act. The only prohibition against the use of accomplice
testimony exists in the rule of caution about corroboration
and the interdiction of influence in any form by s. 343 of
the Code. If any influence by way of promise of pardon has
to be made, the provisions of ss. 337 and 338 or of the
Criminal Law Amendment Act have to be observed. That,
however, applies to special kinds of cases of which the
present is not one. They are
633
concerned with offences triable exclusively by the High
Court or the Court of Session, or offences punishable with
imprisonment which may extend to seven years and certain
offences specially named for which special provision has
been made in the Criminal Law Amendment Act. In other
words, we are not concerned with the provisions for tender
of a pardon found in the Code or the Criminal Law Amendment
Act.
The position that emerges is this : No pardon could be ten-
dered to Ethyl Wong because the pertinent provisions did not
apply. Nor could she be prevented from making a disclosure,
if she was so minded. The prosecution was not bound to
prosecute her, if they thought that her evidence was
necessary to break a smugglers’ ring. Ethyl Wong was
protected by s. 132 (proviso) of the Indian Evidence Act
even if she gave evidence incriminating herself. She was a
competent witness although her evidence could only be
received with the caution necessary in all accomplice
evidence. The expression ‘criminal proceeding’ in the
exclusionary clause of s. 5 of the Indian Oaths Act cannot
be used to widen the meaning of the word accused. The same
expression is used in the proviso to S. 132 of the Indian
Evidence Act and there it means a criminal trial and not
investigation. The same meaning must be given to the
exclusionary clause of s. 5 of the Indian Oaths Act to make
it -conform to the provisions in pari materia to be found in
ss. 342, 342A of the Code and s. 132 of the Indian Evidence
Act. The expression is also not rendered superfluous
because if given the meaning accepted by us it limits, the
operation of the exclusionary clause to criminal
prosecution,-, as opposed to investigations and civil
proceedings. It is to be noticed that although the English
Criminal Evidence Act, 1898, which (omitting the immaterial
words) provides that “Every person charged with an
offence…… shall be a competent witness for the defence
at every stage of the proceedings” was not interpreted as
conferring a right on the prisoner of giving evidence on his
own behalf before the grand jury or in other words, it
received a limited meaning; see Queen v. Rhodes(1).
Before we leave this subject we may refer to certain rulings
to which our attention was drawn. Mr. Jethmalini has
referred to Karim Buksh v. Q.E., (2 ) Da v. Sivan Chetty(3),
Parameshwarlal v. Emperor (4) , Emperor v. Johrit (3),
Albert v. State of Kerala(6) These cases arose in connection
with S. 211 of the Indian Penal Code. The expression
“causes to be instituted criminal proceedings” was held to
include the making of a report to the police or to such
officer whose duty it is to forward the report for action
(1) [1889] 1 Q.B. 77.
(3) I.L.R. 32 Mad. 259.
(5) A.I.R. 1931 All. 269.
(2) I.L.R. 77 Cal. 574 (F.D.)
(4) I.L.R. 4 Patna 472.
(6) A.I.R. 1966 Kerala.1.
634
by the police. It is argued that in s. 5 of the Indian
Oaths Act the words ‘criminal proceedings’ must receive wide
interpretation. Mr. Jethmalini also relied upon Karam Ilahi
v. Emperor(1) where a Division Bench of the Lahore High
Court has held that, since according to the Criminal
Procedure Code a person becomes an accused person as soon as
he has been arrested by the police for an offence, the word
‘accused’ in s. 5 of the Indian Oaths Act must also receive
a similar meaning. We have already shown that the
exclusionary clause in s. 5 is to be interpreted as a whole
and ‘criminal proceedings’ means a criminal inquiry or a
trial before a court and the ‘accused’ means a person
actually arraigned, that is, put on a trial. In fact this
meaning finds support even from the Lahore ease on which Mr.
Jethmalini relies. The scheme of the two provisions being
different it is impossible to use the meaning given in
respect of s. 211 of the Indian Penal Code, in aid of the
construction of similar words in s. 5 of the Indian Oaths
Act.
On the side of the State many cases were cited from the High
Courts in India in which the examination of one of the
suspects as a witness was not held to be illegal and
accomplice evidence was received subject to safeguards as
admissible evidence in the case. In those cases, s. 342 of
the Code and s. 5 of the Indian Oaths Act were considered
and the word ‘accused’ as used in those sections was held to
denote a person actually on trial before a court and not a
person who could have been so tried. The witness was, of
course, treated as an accomplice. The evidence of such an
accomplice was received with necessary caution in those
cases. These cases have all been mentioned in In re
Kandaswami Gounder(2), and it is not necessary to refer to
them in detail here. The leading cases are: Queen Emperor
v. Mona Puna(3), Banu Singh v. Emperor(4), Keshav Vasudeo
Kortikar v. Emperor(5 ) , Empress v. Durant(6) Akhoy
Kumar Mookerjee v. Emperor(7), A. V. Joseph v. Emperor()
Amdumiyan and others v. Crown(8), Galagher v. Emperor(10),
and Emperor v. Har Prasad, Bhargava(11). In these cases
(and several others cited and, relied upon in them) it has
been consistently held that the evidence of an accomplice
may be read although he could have been tried jointly with
the accused. In some of these cases the evidence was re-
ceived although the procedure of s. 337, Criminal Procedure
Code was applicable but was not followed. It is not
necessary to deal with this question any further because the
consensus of opinion
(1) A.T.R. 1947 Lah. 92. (2) A.T.R. 1957 Mad. 727.
(3) I.L.R. 16 Bom. 661. (4) I.L.R. 33 Cal. 1353.
(5) I.L.R. 59 Bom. 355. (6) I.L.R. 23 Bom. 211.
(7) I.L.R. 45 Cal. 720. (8) I.L.R. 3 Rang. 11.
(9) I.L.R. 1937 Nag. 315. (10) I.L.R. 54 Cal. 52.
(II) I.L.R. 45 All. 226.
635
in India is that the competency of an accomplice is not
destroyed because he could have been tried jointly with the
accused but was not and was instead made to give evidence in
the case. Section 5 of the Indian Oaths Act and s. 342 of
the Code of Criminal Procedure do not stand in the way of
such a procedure.
It is, however, necessary to say that where s. 337 or 338 of
the Code apply, it is always proper to invoke those sections
and follow the procedure there laid down. Where these
sections do not apply there is the procedure of withdrawal
of the case against an accomplice. The observations of
Cockburn, C.J. and Black-burn and Mellor, JJ. in Charlotte
Winsor v. Queen(1) must always be borne in mind. Cockburn,
C.J. observed:
“No doubt that state of things, which the
resolution of the judges, as reported to have
been made in Lord Hold’s time, was intended to
prevent, occurred; it did place the prisoner
under this disadvantage; whereas, upon the
first trial that most important evidence could
not be given against her, it was given against
her upon the second, so that the discharge of
the jury was productive to her of that
disadvantage. I equally feel the force of the
objection that the fellow prisoner was allowed
to give evidence without having been first
acquitted, or convicted and sentenced. I think
it much to be lamented.”
To keep the sword hanging over the head of an accomplice and
to examine him as a witness is to encourage perjury.
Perhaps it will be possible to enlarge s. 337 to take in
certain special laws dealing with customs, foreign exchange,
etc. where accomplice testimony will always be useful and
witnesses will come forward because of the conditional
pardon offered to them. We are, therefore, of the opinion
that Ethyl Wong’s evidence was admissible.
The case was one under s. 120-B of the Indian Penal Code.
As the existence o f a conspiracy is proved beyond a shadow
of doubt, s. 10 of the Indian Evidence Act is attracted.
That section provides :
“10. Things said or done by conspirator in
reference to common design.
Where there is reasonable ground to believe
that two or more persons have conspired
together to commit an offence or an actionable
wrong, anything said, done or written by any
one of such persons in reference to their
common intention, after the time when such
intention
(1) [1966] 1 Q.B. 289.
636
was first entertained ‘by any one of them, is
a relevant fact as against each of the persons
believed to be so conspiring, as well for the
purpose of proving the existence of the
conspiracy as for the purpose of showing that
any such person was a party to it.”
The conspiracy was headed by Yau Mockchi 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 Yau Mockchi 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 photostats have been proved
to our satisfaction to be genuine photographs of the
letters. The copies were made through the Indian Embassy
and bore the certificate. The use of the photostats without
the originals was questioned before us but not in the High
Court. Since it was a pure question of law, we allowed it
to be raised. It is submitted that expert testimony as to
handwriting can only be based upon the examination of the
originals and not photographs. It is pointed out that there
is nothing in the Evidence Act which makes a photograph of a
disputed writing the basis of conviction. Nor, it is
submitted, expert testimony can be invited about it.
Reliance is placed on M’Cullough v. Munn(1) and Phipson on
Evidence 10th Edition p. 146.
In our opinion this submission cannot be accepted. Apart
from the fact that this was not argued in the High Court and
the handwriting was admitted there, the law as propounded is
not sound. The originals were suppressed by the appellants
after they were returned. The order of the Supreme Court of
Hong Kong has not been produced before us and we do not know
why the original documents were returned. Adequate
precaution against the suppression of these documents
apparently was not taken. This was perhaps necessary
because the offence was a part of an international smuggling
racket, in which offenders had to be tried in two different
countries and both countries needed the documents as
evidence. If the photostats were not available this
prosecution would have been greatly jeopardised.
Even if the originals be not forthcoming, opinions as to
handwriting can be formed from the photographs. It is
common knowledge that experts themselves base their opinion
on enlarged photographs. The photos were facsimiles of the
writings and could be compared with the enlargements of the
admitted comparative
(1) [1908] 2 I.R. 194.
637
material. In Phipson (10th Edn.) paragraphs 316/317 the
rules as to identification of handwriting is stated from the
Criminal Procedures Act, 1865 as follows :-
“ Comparison of a disputed writing with any
writing proved to be satisfaction of the
judges to be genuine shall be permitted to be
made by witnesses etc……..
(para 316)
In dealing with the scope of the rule, Phipson
observes
“Under the above Act, both the disputed and
the genuine writings must be produced in
court, and the former, if lost, cannot be
compared, either from memory or from a
photographic copy, with the latter, and the
latter must also be duly proved therein.”
(para 317).
Phipson himself in paragraph 316 observes that the
production of ‘real’ evidence is not now compulsory. For
the first part of the proposition in paragraph 317
reference is made to M’Cullough v. Munn.(1). That was an
action for libel contained in a letter alleged to have been
written by the defendant. The original was lost but a
photographic copy of the letter was available, and the
envelope had been preserved. The photograph was seen by the
jury but the Judge ruled that the photograph was evidence of
the contents of the letter but not of the handwriting and
could not be compared with other admitted writings. The
jury gave a verdict for the plaintiff which was set aside by
the Divisional Court and a new trial was ordered. At the
second trial, the photograph was not tendered but a ‘plain
copy’ was put in. The trial resulted in a verdict for the
defendant. The Divisional Court refused to set aside the
verdict. The plaintiff then relied upon Lucas v. Williams
(2 ) claiming that the photograph was evidence. The Lord
Chancellor and Holmes L.J. observed:
“The plaintiff would have been justified in
putting in the photograph as evidence of the
contents of the libel, and apparently it was
the only legal evidence by way of copy of its
contents; and, I think, they might also, on
the authority of the decision in Brookes v.
Tichborne (5 Ex. 929) have used it for
purposes of calling attention to peculiarities
of spelling and use of capital letters and
punctuation. . . ”
At the first trial Lord Chief Baron ruled (with which
Wright, J.agreed in the King’s Bench)-
(1) [1908] 2 I.R. 194 (C.A.)
(2) [1892] 2 Q.B. 113.
638
.lm15
“that upon the loss of the original letter the photograph
was admissible to prove the contents of that letter, but
that it could not be used for purposes of comparison with
genuine documents.”
The above observations have received adverse comments from
Wigmore (3rd Edition) Vol. III paragraph 797. The earlier
cases probably took into account the possibility of trick
photography and the changes likely by adjustment of the
apparatus. Wigmore rightly points out that unless we are
prepared to go to the length of maintaining that exact
reproduction of the handwriting by photography is in the
nature of things impossible, the photograph must be
admissible in proof. Wigmore then observes
“The state of the modern photographic art has
long outlawed the judicial doubts above
quoted. All that can be said is that a
photograph of a writing may be made to
falsify, like other photographs and like other
kinds of testimony, and that a qualified
witness affirmation of its exactness suffices
to remove this danger, -as much as any such
testimonial danger can be removed. - Ac-
cordingly, it is generally conceded that a
photographic copy of handwriting may be used
instead of the original, so far as the
accuracy of the medium is concerned.”
In the footnotes to the above passage many cases are cited
from various countries and in regard to the Irish case just
cited by us the author observes that it raised “a doubt
which was perversely unnecessary”.
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 safeguards 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 originals having been suppressed by the
accused, were not available. The evidence of photographs as
to the contents and as to handwriting was receivable.
639,
Regarding the specimen writing in the letter Z 217, with
which, the impugned writings were compared, we think the
letter must be treated as genuine for the purpose of
comparison of handwriting. The letter was written on June
1, 1960 from Bombay to one Begraj Choraria at Bidsedar. It
was admittedly recovered. from Balchand appellant’s
ancestral house. It was addressed to Dadaji Sahib and it
contains numerous references to domestic matters which are
usually written in such letters. Corroboration of some of
the things said there was available from other sources. It
is impossible to think that such a letter could have been
forged and planted at Bidsedar in the ancestral home. The
letters in BC series 1-45 were rightly compared with it to
determine Balchand’s handwriting.
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
640
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.
Mr. Jethmalini attempted to argue several questions of fact
but in view of the practice of this Court and the concurrent
findings of the High Court and the Magistrate, we have not
attempted to go into the evidence. In fact we can only say
that there is such overwhelming evidence of the complicity
of the appellants that when the points of law fail there is
very little to be said in their favour.
The last contention that there has been discrimination and
violation of Arts. 14 and 20 is without substance. Reliance
was placed on S. G. Jaisinghani v. Union of India and
others(1) that the absence of arbitrary power is the first
essential of the rule of law and here there is room for
selecting one out of several accused to lead accomplice
evidence. Reference was made to other cases of this Court
where unrestrained power of selection without guidelines was
held to offend Art. 14. But the case of the accomplice
evidence is different. Section 337 of the Code of Criminal
Procedure has already been held not to offend Art. 14 and
the matter of taking accomplice evidence outside s. 337 by
using s. 494 or otherwise is not very different. We do not
hold that there was any breach of the Constitution in
receiving Ethyl Wong’s evidence, To hold otherwise would
shut out accomplice evidence completely.
There is thus no force in the appeals. Mr. Jethmalini
argued that the High Court was wrong in enhancing the
sentences of Balchand and Poonamchand appellants and the
sentence of Laxmipat which is the maximum permissible under
law was also too severe. Gold smuggling has become one of
the major difficulties in maintaining our economic
structure. The case evidences an international ring of
smugglers. In view of this we see no reason to interfere.
The appeals will stand dismissed. Appellants to surrender
to their bail.
R.K.P.S.
(1) [1967] 2 S.C.R. 703.
Appeals dismissed.
641