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TMI Blog1967 (12) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... trips of gold (about 250 tolas) under the .lining of the lid of a suitcase, which could be retrieved by 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten 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 corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stimony 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 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 India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween 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 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 sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian 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([1889] 1 Q.B. 77.). 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., (I.L.R. 77 Cal. 574 (F.D.)) Da v. Sivan Chetty(I.L.R. 32 Mad. 259.), Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Keshav Vasudeo Kortikar v. Emperor(I.L.R. 59 Bom. 355) , Empress v. Durant() I.L.R. 23 Bom. 211) Akhoy Kumar Mookerjee v. Emperor(I.L.R. 45 Cal. 720), A. V. Joseph v. Emperor(I.L.R. 1937 Nag. 315) Amdumiyan and others v. Crown(I.L.R. 3 Rang. 11.), Galagher v. Emperor(I.L.R. 54 Cal. 52.), and Emperor v. Har Prasad, Bhargava(I.L.R. 45 All. 226.). 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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([1908] 2 I.R. 194.) and Phipson on Evidence 10th Edition p. 146. In our opinion this submission cannot be accepted. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff 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 ([1892] 2 Q.B. 113) 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) 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 commen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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([1967] 2 S.C.R. 703.) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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