IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO.19 OF 1999
IN
TESTAMENTARY PETITION NO.864 OF 1996
Ronald Fernandes V. Mrs. Rita Pinto CORAM : MRS. ROSHAN DALVI, J.
DATE : 8th
May, 2013.
P.C. :
1. In paragraph 1 1 of my order dated 24th April, 2013 : date
4
th April, 2012 shall be corrected to read 4th April, 1972.
2. The admissibility of the documents of P W 3 is considered
as follows :
1. Upon the evidence in paragraph 2 of the affidavit of evidence
of PW3 copy letter dated 12th September, 1974 cannot be and is
not marked since it is not shown to have been received by the
addressee.
2. Upon the evidence of PW 3 in paragraph 5 of the affidavit of
evidence of PW 3 the receipt of the letter dated 24th August,
1989 by the witness through her motherinlaw is shown.
However, the portion of the letter which is in the handwriting
stated to be of Cyril Pinto is not identified to be in his
handwriting. Hence letter dated 24th August, 1989's marked 'X'
for identification.
3. The copy letter dated 8th
October, 1992 is stated to have been
sent by Maisie Fernandes to one Cyril by the deceased and
dated by her shown along with an acknowledgment dated 17th
December, 1992 which is not identified to be of the addressee
or any other person and is not seen to have been received by
the addressee. For want of such identification the letter is not
marked.
4. Upon the evidence in paragraph 6 of the affidavit of evidence of
PW 3 the Souvenir of First Holy Communion and 17 Greeting
cards sent by or to the deceased are marked Exh.K collectively.
5. Upon the evidence in paragraph 6 of the affidavit of
examination in chief of the PW 3 the persons in two
photographs as also the place of those persons are identified.
Upon such oral evidence the two documents become identified.
Two positive photographs are tendered.
It is contended by counsel on behalf of the Defendant that the
photographs can only be proved by producing the negative of
the photographs and by leading evidence of the photographer.
This dogmatic approach to consider the admissibility of only
photograph as evidence is oft applied by relying upon two
judgments of this Court in the case of Laxman Ganpati Khot V.
Anusuyabai, AIR 1976, (BOM)168 and Sabera Begum Vs. G
M Ansari, 1978 LawSuit (Bom) 106. The judgments lay down
a sound mode of proof of a photograph; in the facts of the case
of Laxman (Supra), the only mode of proof. However, that is
not only way in which a photograph, like any other document
under all circumstances, could be proved.
In the case of Laxman (Supra), the negative was sought to be proved. From the negative an enlarged print was made which
was sought to be proved. Such enlargement was made by a
mechanical device by an expert who was the photographer.
How this law came to be laid down in the case of Laxman
(supra) must be first appreciated. That was the case in which
an adoption of a boy was sought to be proved. One of the
documentary evidence relied upon in support of the adoption
ceremony which was alleged was a negative of a photograph of
the adoption ceremony; not the positive of the photograph. The
son of the then deceased photographer deposed. He produced
the negative of the photograph after he was shown the positive
photograph and called upon to search the negative from his
father's records. He produced the negative and deposed that he
could not say whether that negative was prepared by his father.
Hence it was held that the negative was not duly proved and
was not admissible in evidence. The judgment essentially deals
with the mode of proof of a negative of a photograph and the
admissibility of such a negative. The judgment does NOT
consider the admissibility of a positive photograph.
The ruling run thus :
It is only when the person who takes a photograph and
develops it into a negative himself comes into the box
and deposes to both those facts that a negative becomes
admissible in evidence.
Together with such a negative the positive photograph which
was given to the witness to search out its negative was not
produced.
An enlarged print made from another photo print in respect of which the negative was lost was produced. It was observed
that as regards the admissibility of such enlarged print, the
position was worse. The observation of the Court why the print
of a photograph cannot be admissible runs thus :
….. no print or enlargement can be admitted in evidence
without its negative being produced and proved in the
manner already indicated above.
That was not the photograph, but an enlargement of the
photograph. It could be made only by a skilled mechanical
process. Hence the observation.
A simple photograph may be taken by any one. It may be
developed by any other. The person taking the photograph or
the person present when it was taken can depose as to its
taking, much as a person writing or signing a document or
present when it is written or signed can depose as to that fact.
Upon such deposition the writing becomes admissible subject,
of course, to cross examination of the witness proving the
document. A photograph is much the same. It has to be
identified. Evidence has to be led about the truth of the
contents of the photograph which is done upon such
identification. A photograph, or any other document, may be
proved by any of the 7 ways in which any document may be
proved as set out in the case of Rani Bai Vs, LIC, A 1981 MP
69 pg. 72.
There is nothing in law which bars proof of a photograph by the
person taking (clicking) the photograph who may be analogous
to a scribe or signatory of a document, a person present when it was taken, the expert (photographer) who took the photograph
and developed it from its negative, the acquaintance being the
person who is acquainted with the contents of the photograph
i.e. the persons or objects therein, or even the person who can
compare its contents with other evidence.
What must be appreciated is that admissibility of a document is
a stage prior to appreciation of such documentary evidence.
What would not be admitted into evidence cannot be
appreciated upon marshalling the evidence. Hence to consider
the merits of a given case, admitting a document in evidence
must be upon the direct oral evidence of its existence. Such
evidence enjoins its admittance into evidence so as to give the
witness, or the party producing such evidence though such
witness, the right of being heard upon the case he seeks to
make out. Considering admissibility of documentary evidence
does not allow a court to bar a party from being heard upon the
evidence sought to be produced. The technicality that only one
mode of evidence set out in a judgment must be adhered to
without seeking exceptions or variations, or without application
of mind by any other mode, is to not allow party the right to be
heard upon documentary evidence he / she seeks to produce
because it happens to be a photograph.
If this were so, no photographs can in future be ever admitted
in evidence as they all would be digital productions having no
negatives.
Hence under which circumstances negatives become imperative
to produce must be appreciated. If a number of photographs are tendered in a bunch and some of them are not admitted as
genuine photographs taken with the others in the bunch,
negatives come to be imperatively required to show the
sequence in which all the photographs are taken. But that is a
matter for appreciation of the evidence (documentary evidence
– the photographs) and not admissibility of evidence.
In the facts of the case of Laxman (Supra) the negative (and
not the positive) sought to be proved was clearly inadmissible.
The positive sought to be tendered was not of the negative
produced, but an enlarged copy. How and by whom the
enlargement was made was not deposed and hence the
enlargement without its negative was like a document without
its signature. Hence it was observed that its position as
documentary evidence proved by a witness was even worse
than that of its negative.
An ordinary positive photograph can be taken by any one just
as ordinary document can be typewritten by a typist. To say
that a photograph cannot be proved without the evidence of a
photographer, is much the same as to say that a typewritten
document cannot be proved without the evidence of the typist.
In this case the parties and the place which are identified in
that photograph makes the photograph a document admissible
in evidence. Its appreciation would be subject, of course, to the
cross examination of PW 3. Hence two photographs identified
by PW 3 are marked Exh. 'L' collectively. Upon the similar
evidence the paragraph earlier produced and shown to the
defendant in her cross examination is marked Exh. L 1. Upon the evidence in paragraph 8 of the affidavit of
examination in chief the notes of the deceased identified to be
in the handwriting of the deceased contained in 5 pages are
marked 'Exh.M' collectively.
7. Copy of a complaint stated to have been made by the deceased
to the Sr. Inspector of Police, Colaba along with a copy of
statement of the deceased is not shown to have been received
by the Police Station and hence not marked.
8. Upon the evidence in paragraph 9 of the affidavit of evidence of
PW 3 a note of deceased and a reply thereto by one Bobby
Kooka handed over by the deceased to the witness is marked
'Exh.N' with regard to the factum of the note but not the truth
of its contents of the note.
9. Upon the evidence in paragraph 9 of the affidavit of PW 3 a
note written by the motherinlaw of the witness which
remained with her is marked Exh.O with regard to handwriting
in the note but not as regards the proof of the contents of the
note.
10. The complaint filed by the husband of the deponent
being NC complaint on 9th July, 1990 certified to be true issued
on 15th August, 1990 by Sr. Police Inspector of Colaba PS is
marked Exh.P.
11. A copy of general Power of Attorney executed by
deceased in favour of the husband of the deponent and handed
over by the deceased to the husband of the deponent notarised
on 9th February, 1991 as true copy is not proved by secondary
evidence. Hence it is at present marked X1 for identification.
12. Power of Attorney of the deceased dated 12th April,
1993 executed in favour of the husband of the deponent is as it raises the presumption of its correctness
U/s.85 of the Evidence Act.
13. Copy of the affidavit of the deceased filed in earlier
proceedings is marked 'X2 for identification. It may be
identified by production of certified copy thereof.
3. Testamentary Suit is adjourned to 19th June, 2013 for
further affidavit of evidence, if required.
( ROSHAN DALVI, J.)
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