Laxmipat Choraria & Ors Vs. State of
Maharashtra [1967] INSC 301 (14 December 1967)
14/12/1967 HIDAYATULLAH, M.
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 documentsWhen 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 administered
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 photo stats 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 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. [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. However 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.
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. Dadachanji, 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 numbers, 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 Wonlanded 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 co accused. 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 accused 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 Criminal
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 thatand 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 tendered 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 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 received 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. Accordingly, 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.
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