Admissibility of Photographs, and Photo-Identification, in Court Cases

Adv. Saji Koduvath, Advocate, Kottayam.

Photograph Evidence in a Nutshell

Photographs are admissible in evidence as documents.  P.  Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
A person sees a display may give evidence (as to the Place and Persons) Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.]; P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1
Persons having knowledge of a person, scene, etc., can testify photo and a video.P.  Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161; Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551; Santhosh Madhavan @ Swami Amritha Chaithanya v. State of Kerala, 2014 Ker HC 31; Anu C.R. v. State of Kerala, 2025(7) KHC 150; 2026(6) KLT (SN) 2.
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.
The victim killed by burning was identified by a photograph. It was held that even without noticing any translatable mark or feature of a person, it would be possible to identify him later.Ponnappan v. State of Kerala, ILR 1994(3) Ker 370 (KT Thomas, J.)
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)
A Witness can be Confronted with a Photograph of the place of occurrence During Cross-Examination Without its Prior ProductionAnu C.R. v. State of Kerala, 2025(7) KHC 150; 2026(6) KLT (SN) 2
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 (Manu Sharma v. State (NCT of Delhi), 2010-6 SCC 1, referred to).
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; Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
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

Photo and Video: Relevant and Admissible

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.)

Introduction

Only relevant and admissible evidence can be received by a court. Unless its authenticity is admitted by the opposite party, a photograph must be duly authenticated. Authentication consists of establishing that the photograph fairly and accurately depicts the scene, object or person that it purports to represent. Such authentication need not be provided by the photographer. Any person having personal knowledge of the depicted subject matter may testify that the photograph is a true and accurate representation of what he observed.

Modes of Proof of Photographs

A photograph or video can be proved through the testimony of –

  • the photographer
  • admission by the opposite party or witness;
  • production of the original device containing the image.

They can also be proved through a ‘proper’ witness who is competent to depose by way of general evidence regarding the factual features depicted therein, such as the identity of the persons shown, the place, the time or the surrounding circumstances. They include –

  • one who actually witnessed the capturing of the photograph,
  • a person who saw the scene and
  • one who can identify the place, though not the persons seen in the photo (or the persons and not the place).

Photographs as Evidence and Photo Identification

Photographs are received as evidence in the following cases –

  • Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic  AIR 1999 SC  2562, 2000-1 SCC 138 (photograph used during the investigation for identification of the accused)
  •  Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 (“The photo identification and TIP are only aids in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath.)
  • Rabindra Kumar Pal v. Republic of India, AIR  2011 SC 1436; 2011 2 SCC 490 (Quoted Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1)

Pictorial Testimony Theory and Silent Witness Theory

  • Pictorial Testimony Theory – Here, the personal knowledge of the witness is important. The witness testifies, seeing the photograph, that it fairly and accurately represents what he has seen or what is in his knowledge. In such a case, the photograph need not be proved through a proper witness like the photographer. In short, the testimony of the witness is more important (for the court ) than what is depicted in the photograph.
  • Silent Witness Theory – Photograph Must Be Proved. The witness need not have actually seen the act of capturing by the camera. CCTV footage and dashboard cameras fall in this category. Here, the photograph speaks for itself. It must be proved that the system that produced it was reliable, as the camera was working properly and it has not been tampered with since capture.

In Santhosh Madhavan @ Swami Amritha Chaithanya v. State (2014 Ker HC 31), these two theories governing the proof and authenticity of photographs were explained.

  • First, the pictorial testimony theory: It is applied when a photograph is used merely as an aid to a witness in explaining or illustrating his testimony—for example, a doctor explaining injuries with reference to a photograph, or identification of a deceased through 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, since the photograph is admitted merely to aid a witness in explaining his testimony.
  • Secondly, under the silent witness theory or communication theory: It is invoked when the photograph itself constitutes substantive and probative evidence of what it depicts, speaking for itself (without the support of oral testimony)—for instance, an X-ray film showing a fracture, a photograph depicting the accused in a crowd holding a weapon (though the photographer did not notice him), or a photograph of the scene of occurrence of a crime. In such cases, the photographs must be proven. In such cases, if needed, it must have been shown that the camera was working properly and that the image was not tampered with since its capture.

Presumptions on Photographs and Videos

Section 119 of the Bharatiya Sakshya Adhiniyam (Section 114 of the Evidence Act) allows the Court to ‘presume the existence of any fact ….. regard being had to the common course of natural events‘.

A photograph or a video, by its very nature, speaks for itself. Therefore, the courts in India can commence with a presumption as to the correctness of the photograph or video when its authenticity is prima facie established. In such an event, the onus shifts to the opposite party to rebut that presumption by placing material on record sufficient to dislodge the presumption.

Invoking this general presumption, the courts in India have consistently held –

  • ‘a mere bald denial of the contents of a video recording is insufficient‘; but, ‘there should be material to show that the video clippings are doctored or morphed’.

Photographs – In many cases a Corroborative Piece; It Can be the Best Evidence also

A photograph, being a document, ordinarily requires proof through a proper witness to establish its authenticity and relevance. However, it need not invariably be proved by examining the photographer, and may be proved through any competent witness capable of speaking to the facts depicted or the circumstances of its production. Once duly admitted, a photograph may constitute primary or substantive evidence, though in many cases it is used to corroborate other evidence.

In Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178, it is held that CCTV footage can be a ‘Best Evidence‘. The court said it as under:

  • “Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence – CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.”

In short, a photograph or video, once duly admitted and properly proved, constitutes substantive evidence. Though in many cases it is relied upon as corroborative evidence, in an appropriate case it may, by itself, establish the fact in issue, independently and without the aid of other evidence.

Silent Witnesses Theory – Photograph /Video ‘Speaks for Itself‘

In State Represented by the Inspector of Police, Chennai v. V. P.  Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, the Madras High Court (P.N. Prakash, B. Pugalendhi) explained the “silent witness” theory, stating as under:

  • “115. We may also incidentally notice the developments in the law on video and photographic evidence in the West where the “silent witness” theory is deployed to admit video and photographic evidence. The theory proceeds on the footing that photographic and video evidence are “silent witnesses” which speak for themselves. They are substantive evidence of what they portray.”

The following two foreign decisions were specifically dealt with by the High Court:

  • (a) State of Nevada v. Archanian, [145 P 3d 1008 (2006)]: The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held as under:
    • “There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”
  • (b) Her Majesty v. Jaiyhi He, [2017 ONCJ 790,]: The Ontario Court of Justice in Canada opined to the following effect:
    • The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility: (i) The video is relevant, showing the crime scene or other evidence linked to the issues at trial; and (ii) the video is authentic — that it accurately represents the events depicted.

Circumstantial Evidence be Used – No Particular Evidence or Class of Witness

In State Represented by the Inspector of Police, Chennai v. V. P.  Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, the Madras High Court said further as under:

  • “Referring to the Alberta Court of Appeal’s decision in R. v. Bulldog (2015 ABCA 251), the Ontario Court (in Her Majesty v. Jaiyhi He, 2017 ONCJ 790), said: “Circumstantial evidence may be used to authenticate real evidence – Bulldog at para 35. There is no particular evidence or class of witness that must be called to authenticate a video provided the whole of the evidence establishes that the video in question is substantially accurate and a fair depiction.”

“Can a Digital Video only be Authenticated by an Eyewitness”?

This was the second question raised in R. v. Bulldog (2015 ABCA 251). The question was whether a digital video can only be authenticated by an eyewitness or whether a member of any class of witnesses can provide evidence of authentication.

The answer of Alberta Court of Appeal (in R. v. Bulldog) was “No.”

It held as under:

  • “[20] [The appellants argue] that Nikolovski sets two preconditions to the admissibility of video recordings – specifically, proof that the video accurately depicts the facts, and that it has not been altered or changed. The appellants refer to the process of establishing these facts as ‘authentication,’ and we are content to adopt that term, since ‘authentication’ simply refers to the process of convincing the court that certain tangible evidence matches the claims made about it . . .
  • [21] The second proposition, which relies on R v Doughty, 2009 ABPC 8 (CanLII) at para 37 (citing Elliot Goldstein, Visual Evidence, A Practitioner’s Manual, Vol 1 (Thomson-Carswell, 2007) at 2-19 to 2-20), is that there is an exclusive list of classes of witnesses who can authenticate a video in a manner that meets these two putative Nikolovski preconditions: (1) the camera operator; (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw; (3) a person qualified to state that the representation is accurate; or (4) an expert witness.
  • [22] Based on these two propositions, the appellants argue that the Crown’s evidence in this case could not authenticate the DVD. They submit (but do not really argue) that the authenticating witness was Reddick, who did not create the DVD tendered, did not know who created it, did not know whether the person who did create it used or might have used options which changed the content of the source video footage, was not an expert in the software and in the format changes entailed in copying the DVD and, accordingly, could not give the expert evidence of the effect of format changes which the appellants say is necessary to authenticate the DVD: R v Penney, 2002 NFCA 15 (CanLII), 2002 NFCA 15 at para 24, 210 Nfld& PEIR 209.
  • [23]           In short, the appellants say that, absent evidence from a particular class of qualified person verifying that the video recording had not been altered or changed in the course of undergoing various format changes, the DVD was inadmissible.
  • . . . . . .
  • [34] It will be recalled that the appellants say that, because Reddick does not fit into any of the four categories identified by Goldstein
  • [at para. 21 of the judgment and consisting of:
    • (1) the camera operator;
    • (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw;
    • (3) a person qualified to state that the representation is accurate; or
    • (4) an expert witness.]
  • as persons capable of authenticating video evidence, it follows that the Crown could not authenticate the video recording. We assume that the appellants also maintain that none of the other Crown witnesses would fit into those categories, although we observe that Hodge would have fallen into Goldstein’s second category as an eyewitness, had he viewed the video in court and testified that it accurately depicted what he saw. In any event, these categories are not exhaustive in the sense that, if the Crown does not call one of these four kinds of witnesses, the video recording is inadmissible. Rather, other kinds of evidence or different combinations of witnesses may be employed to satisfy a court of the video recording’s substantial accuracy and fairness.”

Person Sees a Display (in Court) may Give Evidence (as to the Place and Persons)

In Taylor v. Chief Constable of Cheshire, (1986) 1 WLR 1479 : (1987) 1 All ER 225: 84 Cr App R 191 (DC), it was held that a video recording of an incident which is in issue is admissible; and a witness who sees an incident on a display or a recording may give evidence (as to the place and persons) of what he sees in the display or a recording.

Evidence can also be given by one who can identify the place, though not acquainted with the persons seen in the photo (or the persons and not the place).

Halsbury’s Laws of England

In Halsbury’s Laws of England [Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure], dealing with Chapter – “Documentary and Real Evidence”, it is stated as under:

  • “1471.  Audio and video recordings.–An audio recording is admissible in evidence provided that the accuracy of the recording can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise admissible [R. v. Maqsud Ali, (1966) 1 QB 688 : 49 Cr App Rep 230 (CCA).
  • For the considerations relevant to the determination of admissibility see R. v. Stevenson, (1971) 1 WLR 1 : (1971) 1 All ER 678 : 55 Cr App R 171; R. v. Robson, (1972) 1 WLR 651 : (1972) 2 All ER 699 : 56 Cr App R 450. See also R. v. Senat, (1968) 52 Cr App R 282 (CA); R. v. Bailey, (1993) 3 All ER 513 : 97 Cr App R 365 (CA).
  • Where a video recording of an incident becomes available after the witness has made a statement, the witness may view the video and, if necessary, amend his statement so long as the procedure adopted is fair and the witness does not rehearse his evidence : R. v. Roberts, 1998 Crim LR 682 : 162 JP 691 (CA).] .
  • However, that evidence should always be regarded with caution and assessed in the light of all the circumstances [R. v. Maqsud Ali, (1966) 1 QB 688 : 49 Cr App Rep 230 (CCA).
  • As to the use of tape recordings and transcripts see R. v. Rampling, 1987 Crim LR 823 (CA); and see also Butera v. Director of Public Prosecutions, (1986) 76 ALR 45 (Aust HC).
  • As to the tape recording of police interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the Police and Criminal Evidence Act, 1984, Section 78 (as amended) (see para 1365 ante) as unfair evidence see R. v. H, 1987 Crim LR 4 (CC), Cf R. v. Jelen, (1989) 90 Cr App R 456 (CA) (tape recording admitted despite element of entrapment).]
  • Audio and video recordings – A video recording of an incident which is in issue is admissible [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.].
  • There is no difference in terms of admissibility between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of what the camera has filmed. A witness who sees an incident on a display or a recording may give evidence of what he saw in the same way as a witness who had a direct view [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr. App. Rep 191, DC.
  • As to the admissibility of video recordings as evidence identifying the defendant, see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA.
  • A recording showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682.
  • As to the identification of the defendant by still photographs taken by an automatic security camera, see R. v. Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr. App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA..”
  • (Quoted in: P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1; Sri. Prajwal Revanna vs State By Karnataka, 2025:KHC:1747)

Witness Acquainted with a Person, Scene, etc. can Testify Photo and Video

Indian courts have accepted the “pictorial testimony” approach, under which a photograph may be authenticated by a witness having personal knowledge of the person, place, object, or scene depicted therein and who can testify that the photograph is a fair and accurate representation of what he observed.

Examination of the photographer is not an indispensable requirement in every case. The principle finds support in

  • Santhosh Madhavan @ Swami Amritha Chaithanya v. State of Kerala, 2014 Ker HC 31
  • P. Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
  • Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551.

Should Photographer Necessarily be Examined?

No. In Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551, the question came for consideration included the following –

  • “The photograph (Ex. Kha-1) was not admissible in evidence as neither the person who took the photograph nor its negative was produced in evidence.”

The Court considered it and accepted the photograph observing as under:

  • “A photograph of the deceased (Ex. Kha 1), regarding which no dispute was raised by the prosecution witnesses, showing her alone with a male stranger, had surfaced. In the statement under Section 313 CrPC, a stand was taken that this photograph had shamed her. ….”

Should there be Proof – Video not been Altered or Changed?

The appellants in R. v. Bulldog (Alberta Court of Appeal) challenged the authenticity and admissibility of the DVD. They relied on R. v. Nikolovski, [1996] 3 S.C.R. 1197.    The Court considered whether the Crown was bound to prove that the video recording had not been altered or changed. The appellants argued that R. v. Nikolovski mandated a two-fold test (i) requiring proof that the video accurately depicted the facts and (ii) proof that it had not been altered or changed. The Alberta Court of Appeal disagreed. It held (paragraphs 26 to 33):

  • 1. As long as other evidence satisfied the accuracy, no evidence regarding the presence or absence of alteration was necessary.
  • 2. The mere fact of alteration did not automatically render a video recording inadmissible.
  • 3. The Crown’s failure to establish that the DVD was not altered was not fatal as long as the Crown had proven that the DVD was a substantially accurate and fair representation of what it purported to show.

The Alberta Court of Appeal said it as under:         

  • “[26]  . . . the appellants say that Nikolovski creates a two-part test which must be met before admitting video evidence, requiring the Crown to show not only that the video recording accurately depicts the facts, but also that it has not been altered or changed. This is incorrect.
  • [27]  It must first be borne in mind that Nikolovski was not a case about the admissibility of a video recording (which had been conceded), but rather about identity (specifically, whether a trier of fact could identify the accused beyond a reasonable doubt as the offender by relying solely upon that video recording). The critical passage from Nikolovski, para 28 upon which the appellants rely, is found under a heading discussing ‘Use That Can Be Made of Photographs or Videotapes,’ which clearly presupposes admissibility.
  • [28]      Further, the passage itself fails to support the appellants’ contention. It reads as follows: 
  • Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence.
  • This statement does not state a necessary condition for admission, but rather a sufficient condition. It does not, even implicitly, preclude admission of video recordings under other circumstances. Indeed, where an alteration enhances a video recording, its accuracy might well be served by such an alteration: R v Jamieson, [2004] OTC 369 at paras 36-37, [2004] OJ No 1780 (QL) (SCJ).
  • [29] We do agree with the appellants, however, that in some cases Nikolovski has been taken as requiring the tendering party to show an absence of alteration or change: Penney; R v.MacNeil, 2008 QCCS 915 (CanLII) at para 11, [2008] QJ No 1784 (QL); R v Chevannes, 2011 ONCJ 754 (CanLII) at para 16, [2011] OJ No 5937; R v Ellard, 2004 BCSC 780 (CanLII) at para 11, [2004] BCJ No 2914. In Penney, for example, the Newfoundland and Labrador Court of Appeal (at para 17) cited Nikolovski as authority for the statement that ‘[e]vidence establishing that the video has not been altered or changed is a precondition to its admission as evidence.’ With respect, we do not read Nikolovski as stating so broad a proposition, and we see no principled reason to support it. Indeed, taken to its extreme, it could render almost any DVD left unattended next to a computer inadmissible . . .
  • [30]  Other courts have taken a different view of Nikolovski, to the effect that a video recording may be admitted into evidence, even if it has been altered in some way, so long as it is shown to be a substantially accurate depiction of the event in question. In R v Brown, [1999] OTC 213, [1999] OJ No 4865 (CJ), where the Crown sought to tender at trial a security surveillance videotape and enhanced copies, the court stated (at para 3) that, when a videotape has been altered, the test for admissibility is: one of substantial accuracy . . . [T[he Crown must … prove on a balance of probabilities the substantial accuracy of the original tape and the enhancements of it to obtain the permission of the court to tender them in accordance with [Nikolovski] ….
  • [31] Similarly, in R v Crawford, 2013 BCSC 2402 (CanLII) at para 48, [2013] BCJ No 2879 (emphasis added), the court said that Nikolovski should be interpreted in a ‘purposive’ manner, such that a video recording’s admissibility is not precluded, even if ‘complete accuracy’ no longer subsists, so long as ‘the alteration of the recorded event is not so substantial as to be misleading’ or ‘if the image is distorted or otherwise changed in a material way.’ What matters, said the court in Crawford, is that the video recording ‘accurately and fairly presents he information that it is to convey.’ Other courts, including this Court, said much the same thing prior to Nikolovski . . .
  • [32] There is an important distinction between recordings (video or audio) and other forms of real evidence (such as a pistol or an article of clothing found at a crime scene) which supports a test of ‘substantial’ accuracy over the appellants’ preferred test of ‘not altered.’ It will be recalled that ‘authentication’ simply requires that the party tendering evidence establish (to the requisite standard of proof, which we discuss below) the claim(s) made about it. What authentication requires in any given instance therefore depends upon the claim(s) which the tendering party is making about the evidence. In the case of most real evidence, the claim is that the evidence is something – the pistol is a murder weapon, or the article of clothing is the victim’s shirt. Chain of custody, and absence of alteration will be important to establish in such cases. In the case of recordings, however, the claim will typically be not that it is something, but that it accurately represents something (a particular event). What matters with a recording, then, is not whether it was altered, but rather the degree of accuracy of its representation. So long as there is other evidence which satisfies the trier of fact of the requisite degree of accuracy, no evidence regarding the presence or absence of any change or alteration is necessary to sustain a finding of authentication.
  • [33] Put simply, the mere fact of alteration does not automatically render a video recording inadmissible. It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show. All this is, of course, subject to the standard framework for admission, under which a video recording may be excluded on the basis of irrelevance (Penney), where its prejudicial effect exceeds its probative value (R v Veinot, 2011 NSCA 120 (CanLII) at paras 24-27, 311 NSR (2d) 267), or where there is reasonable doubt that the video identifying the accused is a fabrication.”

“Balance of Probabilities“

In R v Penney, (2002) 163 CCC (3d) 329, the court considered the ‘falsification of evidence’ and pointed out that the members of a jury ‘can be expected to have, if not experience with, knowledge of the possibilities for manipulating the content of photographs and videotapes’, and concluded that the ‘standard by which the trial judge is to determine the question is on the balance of probabilities’.

Bald Denials are Insufficient to Discredit the Authenticity of Video Footage

The Madras High Court, in this decision (State Represented by the Inspector of Police, Chennai v. V. P.  Pandi), also observed as under:

  • “113. It is true that the cameraman can zoom or minimize an image. It is also true that trick photography is possible. In Suo Motu taken up (PIL) WP Chief Secretary to the Government of Tamil Nadu v. The Government of Tamil Nadu and others (WP 3335 etc. of 2009) decided on 29.10.2009, a Division Bench of this Court (F.M. Ibrahim Kalifulla and R. Banumathi, JJ) held that bald denials are insufficient to discredit the authenticity of video footage. In her lead judgment, Banumathi, J (as she then was) has opined as under:
    • ‘349. That a bald denial of the contents of a videotape is not adequate to doubt its authenticity; there should be material to show that the video clippings are doctored or morphed’.
  • The Division Bench proceeded to look into the video tape as a corroborative piece of evidence and held as under:
    • ‘350. The respondents have not disputed that the video clippings filed by the petitioners relate to the occurrence. Even though video clippings filed by the petitioners do not have the running time, we have watched the videos and looked into the photos as corroborative piece of evidence’.”

In Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, the conclusion of the Speaker on CDs received from TV News channels, that ‘there is no room for doubting the authenticity and accuracy of the electronic evidence produced by the petitioner’, was accepted by the Apex Court holding as under:

  • “The petitioners despite grant of opportunity had declined to watch the recorded interview. It is one thing to watch the interview, point out in what manner the recording was not genuine but instead of availing of that opportunity, the petitioners preferred to adopt the course of vague denial.”

In Umesh v. State of Karnataka, 2023-2 KarLJ 397, while dealing with a ‘trap case’, after laying down the importance of digital evidence, it is cautioned as under:

  • “Qualified and trained expert should test the samples. The report should contain the procedure adopted for testing the samples. The equipments used should be duly calibrated and updated periodically. The electronic device should be tested for editing and tampering in order to establish its genuineness and authenticity.
  • Digital evidence form be created for every memory card/chip used in the trap case containing the unique identification features of the memory chip/card used. The defence should be provided with a cloned copy or a mirror image of the electronic device.”

Distinct Evidentiary Position of a Section 63(4) Certificate

Once the Section 63(4) certificate accompanies the computer output (copy), the computer output becomes admissible in evidence, and it is not mandatory to examine the CCTV operator, or the person who snapped the photograph, for the purpose of its admission.

  • See: Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473,
  • Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

The Person Who Signed Section 63/65B Certificate Need Not Be Examined: Having regard to the special features of the photographs and videos (that is, visual depictions of facts), even if the Section 63(4) certificate is not that given either by the plaintiff or by the defendant, but by another, the photograph or video can be marked in evidence through the plaintiff or the defendant.

Unless the authenticity or correctness of the certificate issued under Section 63(4) is specifically disputed, oral evidence has no role to play in proving (for the purpose of marking) that the computer output is the exact copy of the (original) electronic record. Therefore, the photographer who issued the certificate under Section 63(4) need not be examined if the correctness of the certificate is not specifically disputed.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC, our Apex Court further affirmed as under:

  • “50. … However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons.”

Presumption on Computer Output (copy) Admitted under Sec. 63

A computer output (copy) of a CCTV footage or video, or of a photograph captured on a mobile phone, can be admitted in evidence in place of the original — if it is produced with a certificate under Section 63(4) of the BSA.

  • Note: Section 63(1), BSA says about admissibility of copy — “Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

Proof by Certificate under Section 63(4)

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, it is held that in view of the non-obstante clause (“Notwithstanding anything contained in this Adhiniyam”) the Section 65B Certificate is the only Mode of Proof of a computer output (copy).

Admitting a Copy in Evidence and Substantive Proof: Independent Matters

(i) Admitting a copy of a computer output (such as copy of a statement of accounts) in evidence (with a certificate under Section 63), and (ii) the formal proof (relevancy, truth, etc.) thereof at the time of trial, are two distinct and independent matters.

  • The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.

The burden of Impeaching the Certificate is upon the Party who Disputes it

The presumption arising under Section 63—by which a computer output is deemed to be a document—is rebuttable and does not render the contents of the electronic record conclusive.

If such a challenge on the certificate is overruled by the court, it can draw a presumption as to the genuineness and authenticity of the photographs or videos contained in the computer output (copies).

S. 63 deals with Admissibility of computer output or copy, and not Proof

The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.

  • However, the court can draw presumptions as to the genuineness and authenticity of such photographs or videos, as stated earlier.

Once Copy Admitted by S. 63 Certificate, Oral Evidence has No Place in Marking

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, is an authority on the following matters –

  • (i) The certificate is meant to replace the oral evidence of the device-handler or operator.
  • (ii) Once the certificate is produced, oral evidence has no place (for the purpose of marking it).

However, the person who issued the certificate (operator) has to be examined if:

  • the authenticity or correctness of the certificate is specifically disputed;
  • allegations of fabrication, manipulation, or false certification are raised;
  • the issuer’s control over the device/system is seriously questioned; or
  • the court needs clarification to assess probative value, not admissibility.

Photograph Must Have Been Proved (In silent witness theory)

When a photograph is admitted merely to aid a witness in explaining his testimony (pictorial testimony theory), it need not be proved formally by examining the photographer or a competent person. 

As stated above, in silent witness theory cases, the photographs must be proved. No doubt, in the peculiar nature of a particular case, the examination of the photographer may not be insisted upon, and the photograph could be proved by another ‘proper’ witness. Formal proof of a photograph may not be necessary where the opposite party admits its genuineness or correctness.

Formal proof of a photograph and S. 63(4) Certificate are Distinct Matters

Formal proof (relevancy, truth, etc.) of a photograph or copy of a video and the requirement of the certificate under Section 63(4) are two distinct and independent matters.

  • Note: 1. A photograph or a copy of a video, admitted in evidence on the strength of a certificate under Section 63(4), stands on a distinct footing (in contradistinction to a statement-of-account) by reason of the statutory presumptions that the court can invoke, it being a direct visual depiction of facts.
  • 2. The certificate under Section 63(4) is accepted unless its correctness is specifically challenged. The oral evidence of the person who issued the certificate becomes relevant (for the purpose of admitting the document) only where the certificate itself is specifically and successfully challenged by the party who disputes its authenticity or correctness.
  • 3. Therefore, the court is entitled to infer that a photograph or video, once duly admitted in evidence, correctly represents the scene or object as it existed at the time of recording. It is doctrinally recognised as the ‘silent witness’ theory – the document “speaks for itself”.
  • 4. Accordingly, once a photograph or copy of a video is duly admitted in evidence, the court can act upon it (usually as a corroborative piece of evidence), on the basis of general evidence relating to the identity of the persons depicted, the place, the time, and the surrounding circumstances, without insisting upon any further primary or direct proof of the facts.
  • 5. The presumption attached to a photograph or a video admitted in evidence being one rebuttable, the opposite party can rebut it by placing appropriate evidence to show that the photograph or video does not correctly represent the scene, object, or occurrence as it existed at the relevant point of time, or that the factual position had materially changed.

Pictorial Testimony Theory: No Enacted Law; Only Judicial Exposition

The pictorial testimony theory rests on judicial exposition rather than statutory codification. It finds only indirect support, in principle, from Section 162 (Refreshing Memory), BSA. Section 162 is to be understood as one not exhaustive in its operation.

Is photograph a Secondary Evidence

A photograph is not, by its very nature, secondary evidence. Its evidentiary character depends upon the type of matter depicted. Where a photograph shows a scene, person, place, or object, it ordinarily constitutes independent evidence of what it portrays. It becomes secondary evidence only when it is relied upon as a reproduction of another document or object whose contents are sought to be proved.

Court Decisions

P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1

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.”

Ponnappan v. State of Kerala, ILR 1994(3) Ker 370

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 – so far as the witness was concerned.

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 been proved through competent witnesses – under the Silent Witness Theory – though the photographer was not examined.

Anu C.R. v. State of Kerala: A Witness may be Confronted with a Photograph During Cross-Examination Without its Prior Production.

The Kerala High Court, in Anu C.R. v. State of Kerala, 2025(7) KHC 150; 2025(6) KLT (SN) 2 (G. Girish, J.), allowed the defence counsel to confront a prosecution witness with a photograph of the alleged scene of occurrence and inquire whether the photograph represented the interior of the building concerned.

The Facts and Legal Principles Assume Significance

At the outset, the following facts and legal principles assume significance:

  1. The court merely permitted the defence counsel to confront a prosecution witness, during cross-examination, with a photograph of the alleged place of occurrence.
  2. If the photograph does not qualify as an “electronic record” or a “computer output”, the provisions contained in Sections 61 to 63 of the Bharatiya Sakshya Adhiniyam, 2023, have no application. In any case, the Court was not called upon to consider the applicability of Sections 61 to 63 of the BSA, 2023.
  3. If the photograph is used solely for the purpose of confronting a witness during cross-examination, the mere fact that the witness admits its correctness does not render it liable to be marked as an exhibit. By analogy to the principle underlying Section 148, BSA (Section 145, Evidence Act), material employed only for confrontation does not become substantive evidence merely because the witness accepts its correctness.
  4. However, the fact that a photograph is capable of being used merely for confronting a witness does not preclude its admission in evidence. Where the witness admits that the photograph correctly depicts the person, place or object portrayed therein, the court may admit and mark the photograph as an exhibit on the basis of such admission, particularly if it is prepared to draw the presumption contemplated under Section 119 of the BSA.
  5. The Bharatiya Sakshya Adhiniyam, 2023, like the Evidence Act, 1872, contains no express provision dealing with the use of photographs for confronting a witness during cross-examination. The statutory scheme principally addresses cross-examination concerning previous statements and matters in writing (Section 147 and 148 of the BSA), leaving the admissibility and use of photographs to be governed by general principles of evidence and judicial discretion.

The Kerala High Court, in Anu C.R. v. State of Kerala, held as under:

  • “i)​ The learned Additional Sessions Judge is directed to permit the counsel for the accused to confront PW2 by showing the photograph of the interior of the building which he had leased out to the accused (Annexure-A3) and to ask whether it is the photograph of the interior portion of the building which he had leased out to the accused.
  • ii)​ If the witness gives an affirmative answer to the above question, the defence counsel shall be permitted to ask further questions related to it, with due regard to its relevancy, and to get the said document marked as an exhibit on the part of the accused, subject to production of that document immediately thereafter, following the formalities prescribed in that regard.
  • iii)​ If the witness denied the above suggestion, or says that he is not able to say anything on the basis of the above document, the counsel for the accused need not be permitted to proceed with further questions on that document.
  • iv)​ The learned Additional Sessions Judge is directed to permit the counsel for the defence to confront PW2 by showing the site plan prepared by the Village Officer and ask whether the aforesaid document was the plan of the building which he had rented out to the accused.
  • v)​ If the witness gives an affirmative answer to the above question, then the defence counsel should be permitted to ask further questions on that site plan, with due regard to its relevancy, and also to admit the document as an exhibit of the prosecution, marked at the instance of the accused.
  • vi)​ If the witness denies the suggestion, or says that he is not able to state anything about it, then the defence counsel need not be permitted to ask further questions on that document to that witness.”

Objections Raised Against Marking of Photograph and Site Plan

The objections raised, in Anu C.R. v. State of Kerala, against the marking of the photograph and site plan were the following:

  • “The aforesaid photograph is not pertaining to the witness, or made by the witness, and it is not falling within the purview of Section 145 of the Evidence Act”.
  • “The site plan prepared by the Village Officer, which formed part of the prosecution records, was also refused by the learned Additional Sessions Judge stating the reason that the aforesaid site plan is not prepared by that witness.”

Law Relied on by HC to say that Trial/Sessions Judge Went Wrong

The Three Judge Bench of the Supreme Court in Anees v. State Government of NCT (DY Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.), AIR 2024 SC 2297; 2024-6 SCR 164; 2024 KHC 6256, held as under:

  • “The object of the cross-examination is to impeach the accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness; to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party.”

Legal Principles Lend Support to the Kerala High Court View

The following legal principles lend support to the view taken by the Kerala High Court:

1. Section 148, BSA

  • Section 148 of the BSA (Section 145, Evidence Act) enables to contradict witnesses with his previous statements:
    • “Without such writing being shown to him”.
  • Here, the materials are “shown” and asked.

2. Section 141, BSA

  • Section 141(2) and (3) of the BSA [Section 136 (2) and (3), Evidence Act] reads as under:
    • “(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
    • (3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

(If the court permitted the cross-examiner to proceed, without raising objection by the court, it can be presumed that the party has ‘undertaken’ to give proof of such fact, “and the Court is satisfied with such undertaking”.)

Summary and Conclusion

The use of a photograph during cross-examination does not invariably amount to proving the photograph in evidence. Nor does it necessarily involve the doctrine of refreshing memory embodied in Section 162 of the BSA. A photograph may be shown to a witness merely for the purpose of identification, clarification, testing the accuracy of his testimony, or confronting him with a particular factual situation. In such cases, the photograph functions only as an aid in the examination of the witness and not as substantive evidence.

However, where the witness admits that the photograph correctly depicts the person, place or object portrayed therein, and the Court is prepared to draw the presumption contemplated under Section 119, BSA, the photograph may be admitted in evidence and marked as an exhibit on the basis of such admission.

State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019-2 CTC 391; 2019-3 CTC 391; 2019-2 MLJ(Cri) 129,

The Madras High Court held as under:

  • “115. We may also incidentally notice the developments in the law on video and photographic evidence in the West where the “silent witness” theory is deployed to admit video and photographic evidence. The theory proceeds on the footing that photographic and video evidence are “silent witnesses” which speak for themselves. They are substantive evidence of what they portray. Two examples may be noticed.
  • (a) State of Nevada v. Archanian, [145 P 3d 1008 (2006)] was a murder case before the Supreme Court of Nevada, where, a key piece of evidence was the digital video recorded by the store’s surveillance system. The accused attacked the authenticity of the video footage on the ground that the VHS tape given to the police video technician was not the original and that the technician had isolated the relevant camera view and highlighted certain portions of the video. It was this composite videotape that was shown to the jury. In the trial, the prosecution acknowledged that they had no way of knowing whether the images were accurately transferred from the original digital recording to the VHS version but testified that they appeared to be the same. The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held as under:
    • “There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”
  • (b) More recently, in Her Majesty v. Jaiyhi He, [2017 ONCJ 790] Kenkel, J. of the Ontario Court of Justice in Canada formulated a test, very similar to our own and that has been alluded to by us in para 105 (supra). The Court opined:
    • “The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility:
    • They must prove the video is relevant, showing the crime scene or other evidence linked to the issues at trial.
    • They must prove the video is authentic – that it accurately represents the events depicted.”
  • Referring to the Alberta Court of Appeal’s decision in R. v. Bulldog (2015 ABCA 251), the Ontario Court said:
    • “Circumstantial evidence may be used to authenticate real evidence – Bulldog at para 35. There is no particular evidence or class of witness that must be called to authenticate a video provided the whole of the evidence establishes that the video in question is substantially accurate and a fair depiction.”
  • The Ontario Court has held that in a given case, whether the two part test (supra) is satisfied or not, would have to be decided on a balance of probabilities. The Court found that the testimony of the police officer was in sync with the narrative contained in the video, thereby establishing its authenticity on a balance of probabilities. The Ontario Court further observed:
    • “7. While the circumstantial evidence is sufficient, in this case, there is further direct evidence that independently shows the video is accurate. The surveillance video is in sync with all of the other evidence at trial. The officers’ testimony as to the scene when they arrived, the times the various officers arrived, their actions, the position of the accused, the departure of other parties, the arrival of the ambulance is all consistent with this video. The two police in-car videos are also consistent with this surveillance video.”
  • We have referred to these decisions in order to reiterate that a pragmatic and purposive interpretation of the law governing the admission of electronic evidence is consistent with the development of the law in international jurisdictions as well.
  • 116. We, therefore, unhesitatingly hold that the photos and videos in M.Os.45,49,50,51,52 and 53 were taken contemporaneously when the attack was taking place and have not been doctored and can be read in evidence.”

A Photograph is Proved only if the Photographer is Examined

The Madras High Court (R. Banumathi, J.), in P. Rama Srinivasa Rao v. Dr. N. Ragavan, (2006)3 MLJ 625, observed as under:

  • “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.”
  • (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.”

End Notes

Section 162 of the BSA reads as under:

  • “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.”
  • (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.”

Definition of Evidence

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

  • “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.”

Connected Articles:

  • “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.”
  • (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.”
  • Pictorial Testimony Theory and Silent Witnesses Theory in Law of Evidence

Definition of document

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

  • “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.”
  • (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:

  • “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.”

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).

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2 Comments

  1. EBIN XAVIER's avatar EBIN XAVIER says:
    October 9, 2025 at 1:01 pm

    Sir , Please confirm whether, under the Kerala Civil Rules of Practice, a party to a pending civil case—even when represented by an advocate—may personally inspect the entire case record on filing a simple Rule 112 memorandum with the court office (without a judicial order or IA), with the inspection to be supervised under Rule 116; and clarify in what situations, if any, Rule 114 requires the matter to be placed before the Judge (notice/IA), plus whether such a Rule 112 memo can be physically filed as an ‘other memo’ (e-filing optional).”

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  2. blissful1518c1cd8d's avatar blissful1518c1cd8d says:
    October 13, 2025 at 7:57 pm

    sir I need authority to add plaintiff under 1 rule 10(1) cpc

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