Section 62 in The Indian Evidence Act, 1872
62. Primary evidence—Primary evidence means the document itself produced for the inspection of the Court. Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
To appreciate the merits , we may consider marking of documents during cross examination by showing the documents to the witness. The documents in the possession of the cross-examiner may either be admissible in itself or inadmissible. In a given case, the Document/ Photograph is an admissible document. Though the document is admissible, can the document be admitted in evidence through the Plaintiff who had neither taken the photograph nor at whose instance the document was marked. Undoubtedly, the document being shown to the witness, when the witness asserts or admits the same, the document could be marked through that witness. But the “photograph” cannot be equated to such categories of documents which could be marked through cross-examination of witness.
Whether a photograph is a correct reproduction of the original, whether it correctly depicts the picture of the location depends on many factors viz., correctness of lens, state of weather and time taken, photographic skill adopted by the photographer, accuracy of the angle, availability of light and such other factors. The proof of identity of the site, location, objects and persons in the photograph photograph could be admitted in evidence only by examining the photographer.
Frequently, objections are being raised about the accuracy of the photographs on the ground of correctness of lens, light, focussing, skill of the photographer and such other aspects. The photograph is not something which contains some admissible contents to be marked through witnesses during cross-examination – say, for instance like containing the signature or writing of the witness who is in the box wherein he could assert or admit its contents. The witness who is cross examined can neither assert nor deny the contents or accuracy of the photograph. While so, the cross-examiner cannot insist for marking the photograph during the cross-examination of either the opponent or his witnesses.
If the photograph in the hands of the cross-examiner is marked during cross-examination, how could the party who called the witness could cross-examine the witness as to the accuracy of the photograph. Hence though the photograph is admissible, it cannot be marked during the cross examination of the opponent or his witnesses. It is always desirable to produce the photographs by examining the person who took the photographs or by the party who is relying on the photographs or at whose instance the photographs were taken. It cannot be marked during cross-examination of the opponent or his witnesses.
Generally, photographs are admissible (sec 62 of Evidence Act) only if the photograph has been properly verified on oath by a person able to speak to its accuracy. Photographs should not be admitted in evidence without examining the person who took the photographs and the negatives of the same being produced on record or at whose instance the photographs were taken.
Though the Plaintiff could admit that the document is a photograph, the same cannot be marked through him since he has not taken the photograph.