Photograph Evidence, Its Admissibility and Photo-Identification in Court Cases

Photographer Need Not be Examined: When a photograph shows the accused in a crowd, armed with a weapon, at the scene – which speaks for itself.  

It is a misconception that a Section 63 Bh. Sak. Act Certificate (S. 65B Evd. Act) is always required for the admissibility of a photograph in court.

Adv. Saji Koduvath, Advocate, Kottayam.

Nutshell – Photograph Evidence

Photographs are admissible in evidence as documents.  P.  Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
While considering a case on dowry death, the prosecution argued that a photograph was not admissible in evidence as neither the person who took the photograph nor its negative was produced in evidence. But, the court accepted the photograph as ‘no dispute was raised by the prosecution witnesses’.Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551
A large number of photographs were marked and considered in this case.
In para 525, it is stated – the witness “was confronted with photographs of the inscription”
There were three sets of albums containing photographs taken by the State Archaeological Department pursuant to an order dated 10 January 1990 (Para 533).
In para 538, the Court considered the evidence of a witness as to the “photographs placed within the structure in 1990”.		M.  Siddiq v. Mahant Suresh Das, 2020-1 SCC 1 (Ayodhya case)
The factum of photo identification (of an accused) by PW 2, as witnessed by the officer concerned, is a relevant and admissible piece of evidence.Rabindra Kumar Pal v.  Republic of India, 2011-2 SCC 490
Nothing prevented the appellant-State Government from producing the relevant photographs of the purported pucca pond existing at some spots.State of Rajasthan v. Ultratech Cement Ltd. , 2022-12 Scale 606; 2022-13 SCR 1
A statement about the photograph made by any expert would not be admissible before examining the photographer.Dr. Pankaj Kumudchandra Phadnis v. Union of India, (2018) 5 SCC 785
Photographs, tape-records of speeches [Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17] are documents.Shamsher Singh Verma v. State of Haryana, 2016 15 SCC 485;
Nilesh Dinkar Paradkar v. State of Maharashtra, 2011-4 SCC 143
Photo identification of an accused during the investigation, who was seen by the witness at the relevant time.Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic  AIR 1999 SC  2562, 2000-1 SCC 138; Rabindra Kumar Pal v. Republic of India, AIR  2011 SC 1436; 2011 2 SCC 490
Inventory, photographs and the list of samples certified by the Magistrate are admissible as primary evidence. It is a substitute for the production of physical evidence of seized contraband samples.Nisar Ahmed Bhat, v. Union Territory of Jammu and Kashmir 2024 0 Supreme(J&K) 187  
The tape record corroborated his testimony, as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae.K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275;
R.M Malkani v. State of Maharastra, AIR 1973 SC 157;
Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720

Nutshell – Photo and Video: Relevant and Admissibile

Audio/video cassettes Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17
Tape records of speechesTukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329
Photo or videoMohammed Rafiq v. Madhan, 2018-1 Mad LJ(CRI) 641;
Moti Rabidas v. The State of Bihar, 2015-145 AIC 435;
Vaman Narain Ghiya v. State of Rajasthan 2014-1 Raj Cri C 31;
State of MP v. Shankarlal, ILR 2010 MP 717;
P Rajagopal v. Inspector of police 2009-2 Mad LJ(Cri) 161;
Santhosh Baccharam Patil v. State of Maharashtra, 2002 All MR (Cri)997, 2003 BCR (Cri) 120.
CD  Shamsher Singh Verma v. State of Haryana, (2016) 15 SCC 485
Photographs including photographs of tombstones and houses Lyell v. Kennedy (No.3) (1884) 50 L.T. 730
Video recordings  State of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053
Audio and videoState of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053;
Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31;
Taylor v. Chief Constable Cheshire:1987(1) All.ER 225
CassettesTukaram S.Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329
Moving cinematographSenior v. Holdsworth, Ex parte Independant Television New Ltd. (1976) Q.B. 23)
Film  Rex v. Daye ((1908)2 K.B. 333, 340)
Floppies, CCTV footages, CDs, DVDs, Chips, Hard discs, Pen drives– North West Airlines v. Union of India 2007 (214) ELT 178 (Bom.)

When should a photographer be examined?

Photographer Need Not be examined – when a photograph shows the accused in a crowd, armed with a weapon at the scene – which speaks for itself.

Photographs, audio and video cassettes etc. are, as shown above, ‘documents ‘.  Depend upon the requirement of proving the authenticity, as shown in Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KerHC 31, they are divided into two categories. They are:

  • (i)  aid a witness in explaining his testimony (Pictorial testimony theory) – (E.g. a doctor explains injury with the help of a photograph; identification of a deceased with photo.);
  • (ii) probative evidence of what those evidence depicts (Silent witness theory) – (E.g. X-ray film showing a fracture; a photograph showing accused – in a crowd – armed with a weapon, though the photographer did not see him; photograph of a scene of the occurrence of a crime – which speaks for itself.)

Witnesses may, with their personal knowledge, state that a photograph is a fair and accurate representation of the fundamental facts appear therein. (E.g. a doctor explains injury with the help of a photograph.) In such a case, the evidence of the witness will be the primary matter rather than what is depicted in the photograph; and the photographer need not be examined in court, inasmuch as the photograph is admitted merely to aid a witness in explaining his testimony. They are, explained by Wigmore as, ‘nothing more than the illustrated testimony of that witness’. This principle gives rise to Pictorial testimony theory or communication theory.

But, when a photograph itself is taken as probative and substantial evidence of the matters appear therein, it acquires the glorified status of independent ‘silent witnesses’. In such cases, there should be cogent evidence before the court, to admit the photograph in evidence. (E.g. X-ray film showing a fracture; a photograph showing accused – in a crowd – armed with weapon, though the photographer did not see him.)

Photograph Must Have Been Proved

No doubt, even in cases where the photograph could be exhibited without examining the photographer, the photograph must have been proved by a ‘proper’ witness. (In the nature of a particular case, the examination of the photographer may be necessary, invoking the best evidence rule).

Definition of Evidence

According to the Section 2(1)(e) of the Bh. Sak. Act –

  • ” ‘evidence’ means and includes–

    (i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;

    (ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence.”

Connected Articles:

Definition of document

Section 2(1)(d) of the Bh. Sak. Act defines ‘document’ as under:

  • “ (d) ‘document’ means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.

    Illustrations.
  • (i) A writing is a document.

    (ii) Words printed, lithographed or photographed are documents.

    (iii) A map or plan is a document.

    (iv) An inscription on a metal plate or stone is a document.

    (v) A caricature is a document.

    (vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.”

‘Document’ takes in photographs of words as could be seen from the illustration.

By virtue of Section 65B of the Indian Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (computer output) shall be ‘deemed to be also a document’.

Besides the Evidence Act, the term ‘document’ has been defined in the General Clauses Act, 1897, and the Indian Penal Code, 1860.  

Section 3(18), General Clauses Act defines document as under:

  • “Document shall include any matter written, expressed, or described upon any substances by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used for the purpose of recording that matter.”

Section 29, Indian Penal Code explains that the word document denotes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

In Explanation 1, it is stated:

  • “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”

Going by the definitions, ‘document ‘ includes not only all materials or substances upon which thoughts of a man are represented by writing or any other species of conventional mark or symbol, but also records of information of some sort (Santhosh Madhavan @ Swami Amritha Chaithanya v. State, 2014 KerHC 31).

In P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1, it is observed that tape records of speeches (Also in: Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17 ) and audio/video cassettes (See: Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, 1976-2 SCC 17) including compact disc (See also: Singh Verma v. State of Haryana, 2016-15 SCC 485) were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and were held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the Evidence Act (Anwar PV v. PK Basheer, 2014-10 SCC 473).

Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720

  • “The process of tape-recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under s. 7 of the Indian Evidence Act.”

R.M Malkani v. State of Maharastra, AIR 1973 SC 157

In R.M Malkani v. State of Maharastra, AIR 1973 SC 157, summarised this case (Yusaf Ali lsmail Nagri) as under:

  • “In Nagree’s case (Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720) the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector  Sheikh gave evidence of the talk. The tape record corroborated his testimony, as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act.”

After summarising Nagree’s case (Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720), the Supreme Court said as under:

  • “The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secures scrupulous conduct and behaviour on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused, the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the Surrounding circumstances.”

K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275:

  • 7. The amended definition of “evidence” in section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In R.M Malkani v. State of Maharastra, AIR 1973 SC 157, this court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such electronic record can be received as evidence.”

The Kerala High Court (KT Thomas, J.), in Ponnappan v. State of Kerala, ILR 1994(3) Ker 370, in appeal, confirmed the conviction holding that Chacko was the person who was killed. It was on a photo identification – Pictorial testimony. The Court held as under:

  • “PW I identified the person in M.O.9 photo as the person who was killed. There is no doubt that M.O.9 is the photograph of Chacko, the film representative. It was contended that since P. W.I himself admitted that he had not observed the features or facial peculiarities of the person when he was inside the car, the identification made by him with the help of the photo is not of any use. We are of the view that even without noticing any translatable mark or feature of a person it would be possible to identify him later.”

Here the photo had not been proved through the photographer.

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