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Rajasthan High Court · body

2017 DIGILAW 740 (RAJ)

Gurmeet Singh S/o Tej Singh v. State of Rajasthan

2017-03-10

P.K.LOHRA

body2017
ORDER : 1. Petitioner has filed this Misc. Petition under Section 482 Cr.P.C. assailing the legality and propriety of order dated 22.02.2017 passed by learned Additional District Judge, Srikaranpur, District Sriganganagar (for short ‘learned trial Court’) in Sessions Case No. 24/2011, whereby the learned trial Court has rejected the application filed by the petitioner under Section 65 of the Indian Evidence Act, 1872 (for short ‘Act of 1872’) for taking on record photostat copy of C.T. Scan Report as secondary evidence. 2. In a nutshell, facts of the case are that on 12.05.2010 during treatment, Parcha Bayan of petitioner-complainant was recorded by Police wherein he alleged that in the night of 12.05.2010 at about 4:00 AM, when he along with his father and others was irrigating the agricultural field, accused persons came there and a blow of kassi was given on his head. Upon the said Parcha Bayan, FIR No. 84/2010 came to be registered at Police Station Srikaranpur against accused persons including respondent no. 2 for offence punishable under Sections 307, 341, 323 and 34 IPC. During trial, petitioner moved an application under Section 65 of the Act of 1872 for treating zerox copy of C.T. Scan Report as secondary evidence with the assertion that earlier original C.T. Scan Report could not be placed on record as the same was lying with Medical Officer, Community Health Centre, Srikaranpur and was not in his possession. 3. Learned trial Court, after hearing the parties, vide order dated 22.02.2017, rejected the application of petitioner observing that neither any doctor had referred for C.T. Scan, nor the Investigating Officer made recommendation for such C.T. Scan, therefore, photostat copies of the documents issued by Radiology Maharaja C.T. Scan Centre are not at all admissible as secondary evidence. The learned trial Court has also observed that the said application is filed only in order to linger on the trial proceedings. 4. Mr. Pankaj Gupta, learned counsel for the petitioner, submits that a photostat copy of the C.T. Scan Report was submitted along with charge-sheet and on that basis, charge for offence under Section 307 IPC was framed, therefore, the learned trial Court ought to have treated the same as secondary evidence. 4. Mr. Pankaj Gupta, learned counsel for the petitioner, submits that a photostat copy of the C.T. Scan Report was submitted along with charge-sheet and on that basis, charge for offence under Section 307 IPC was framed, therefore, the learned trial Court ought to have treated the same as secondary evidence. It is also submitted by learned counsel that since original C.T. Scan Report was not available with the petitioner, therefore, the same was not submitted before the learned trial Court and thus there is no fault on his part in not producing the same. 5. Learned Public Prosecutor, appearing for the respondent-State, has countered the arguments advanced by learned counsel for the petitioner and submits that there is no illegality or perversity in the impugned order, and therefore, no interference with the impugned order is warranted. 6. I have heard learned counsel for the parties and perused the impugned order. 7. Section 65 of the Act of 1872 envisages certain cases in which secondary evidence relating to documents may be given including the contingencies when original document has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time but not by preparing it mechanically, which is not part of the charge-sheet. In the instant case, the petitioner wants that zerox copy of the CT Scan Report may be taken on record as secondary evidence under Section 65 of the Act of 1872, however, as the same itself is of disputable character and the original C.T. Scan Report was not produced at the inception, therefore, same cannot be allowed as secondary evidence at this stage to be admitted. 8. The party which seeks to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law, as has been propounded by Supreme Court in Rakesh Mohindra vs. Anita Beri and Others, 2016 (1) SCJ 457. 9. Hon’ble Supreme Court, in the case of M. Chandra vs. M. Thangamuthu, (2010) 9 SCC 712 , had an occasion to consider the requirements of Section 65 of the Act of 1872 and has held as under:- “47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.” 10. Supreme Court, in case of J. Yashoda vs. K. Shobha Rani, AIR 2007 SC 1721 , has held that secondary evidence, as a general rule, is admissible only in the absence of primary evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Supreme Court, in case of J. Yashoda vs. K. Shobha Rani, AIR 2007 SC 1721 , has held that secondary evidence, as a general rule, is admissible only in the absence of primary evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Furthermore, it is only when the party satisfies the conditions prescribed under Section 65 of the Act of 1872 that the document can be admitted as secondary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Essentially, secondary evidence is evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. Section 65, however, permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in that Section. 11. In Ashok Dulichand vs. Madahavlal Dube and Another, (1976) 1 SCR 246 , the Hon’ble Supreme Court has held that in a case of photo copy of a document, before it is admitted in evidence, it has to be explained as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photo copy was taken and this should be above suspicion. 12. In the present case, as will appear from the impugned order as also the facts and circumstances of this case, neither of the party has been able to show as to why and when photo copy of the original report was prepared and under which circumstances. It has also not been stated as to who was in possession of the original document at the time when its photo copy was prepared. It has also not been stated as to who was in possession of the original document at the time when its photo copy was prepared. In the present case, Original CT Scan Report was not attached and presented before the learned trial Court at the very first instance itself which goes against the case of the present petitioner. Under these circumstances, learned Court below rightly declined to take photo copy of the CT Scan Report on record as secondary evidence. It is well settled that photo copy of a document is admissible as secondary evidence only if it is proved to be genuine. The genuineness is to be proved either by examining the person concerned who prepared the report or by some other evidence. Thus, Secondary evidence can be admitted only after satisfying the legal requirements for non-production of primary evidence, else same cannot be admitted in evidence at all. 13. In view of above discussion, the primary evidence, i.e. original CT Scan Report, itself is of the disputable character and same was not produced at the inception, and therefore, at this juncture, photo stat copy of the same cannot be allowed as secondary evidence under Section 65 of the Act of 1872 and this Court does not find any illegality in the impugned order dated 22nd of February 2017 passed by learned Court below as the same has neither occasioned failure of justice nor it can be categorized as an abuse of the process of the Court. Resultantly, the petition fails and same is hereby dismissed.