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
Mrs. Rita Pinto
CORAM : MRS. ROSHAN DALVI, J.
DATE : 8th May, 2013.
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.)