The Chhattisgarh High Court has held that unless it is established that the original document is lost, destroyed, or deliberately withheld, secondary evidence cannot be accepted in its place. The Division Bench comprising Chief Justice Ramesh Sinha and Justice Bibhu Datta Guru delivered this ruling while allowing a petition under Section 482 of the Criminal Procedure Code (CrPC).
Background
The petitioner had moved the High Court seeking quashing of the trial court’s order dated 20.06.2022, which had accepted a photocopy of an “ikrnama” (agreement) as Exhibit P/19 during the cross-examination of the prosecutrix in a trial involving charges under Sections 376 and 417 of the Indian Penal Code. The petitioner contended that the said document was neither mentioned during the police investigation nor submitted at the time of recording of the prosecutrix’s statements under Sections 161 and 164 CrPC.
The impugned document, which was introduced for the first time during cross-examination, was marked as an exhibit by the trial court without the petitioner’s consent and without following the procedural requirements under the Indian Evidence Act, 1872.
Arguments
Counsel for the petitioner, Mr. Ravindra Sharma, argued that the acceptance of a mere photocopy of the document without any notice under Section 66 of the Evidence Act was in gross violation of evidentiary rules and principles of natural justice. He submitted that the original document was never produced and that its sudden production during cross-examination would severely prejudice the petitioner’s defence.
Respondent No. 2’s counsel, Mr. Vivek Bhakta, supported the trial court’s action but, when asked by the court, confirmed that the original document was not in the complainant’s possession and claimed it was with the petitioner.
Court’s Analysis
Referring to Sections 65 and 66 of the Indian Evidence Act, the Court reiterated that secondary evidence is admissible only in limited circumstances, such as when the original is lost, destroyed, or in the possession of the opposing party and not produced despite proper notice. The Court quoted from Ashok Dulichand v. Madahavlal Dube and Rakesh Mohindra v. Anita Beri to underscore that foundational facts must be established for the admissibility of secondary evidence.
The Bench observed:
“Unless, it is established that the original document 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.”
The Court further held that in the present case, the document marked as Ex-P/19 was not part of the police investigation or charge sheet, nor was any formal application filed for its acceptance. The trial court accepted it without verifying the foundational facts or recording the petitioner’s objections.
Decision
The High Court quashed the trial court’s order dated 20.06.2022 to the extent it accepted the photocopy of the ikrnama as Exhibit P/19. It directed the trial court to proceed with the matter expeditiously in accordance with law.
