Chief Justice Ramesh Sinha, Justice Bibhu Datta Guru, Chhattisgarh High Court
For Secondary Evidence To Be Admitted, Foundational Evidence Regarding Non-Furnishing Of Original Evidence Has To Be Given: Chhattisgarh High Court
|The Chhattisgarh High Court was considering a petition whereby the petitioner sought quashing of the order to the extent of taking the document/agreement produced by the prosecutrix at the time of cross-examination.
The Chhattisgarh High Court has set aside an order whereby the Trial Court accepted a document produced by the prosecutrix at the time of cross-examination without recording an objection on the non-production of the original copy. The High Court also reiterated that for secondary evidence to be admitted, foundational evidence has to be given being the reasons as to why the original evidence has not been furnished.
The High Court was considering a petition under Section 482 of the CrPC whereby the petitioner sought quashing of the order to the extent of taking the photocopy of the document/agreement produced by the prosecutrix at the time of cross-examination. A plea was also raised that a direction be passed to the Trial Court that the evidence recorded in this regard in the cross-examination of the prosecutrix not be taken into consideration while passing the final judgment.
The Division Bench of Chief Justice Ramesh Sinha and Justice Bibhu Datta Guru observed, “It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original evidence has not been furnished.”
“It is trite that under the Evidence Act, 1872, facts have to be established by primary evidence, and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence”, it added.
Advocate Ravindra Sharma represented the Petitioner, while Panel Lawyer Malay Jain represented the Respondents.
Factual Background
The complainant/respondent 2 lodged a written complaint against the petitioner, stating that on the pretext of marriage, the petitioner had committed sexual intercourse with her and refused to marry her. It was also alleged that he had cheated her. On the complaint of the victim, a case was registered under Sections 376 and 417 of the IPC, and the petitioner was arrested. The Trial Court framed the charges against the petitioner for an offence punishable under Sections 376 & 417 of the IPC and fixed the case for evidence.
During cross-examination of the victim, she produced one agreement/Ikrarnama stating that the same had been executed by the petitioner, and his signature was present in the said agreement. The trial court accepted the said document. The petitioner filed the petition on the ground that the document was not part of the charge-sheet, and that for the first time during cross-examination, she produced the same before the trial Court. It was the petitioner’s case that the said document had been accepted by the trial court without recording the objection of the petitioner/ accused, which was illegal, improper and contrary to the law.
Reasoning
Referring to section 65 of the Evidence Act, the Bench explained that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it.
The Bench noted that the victim had not filed any application for taking the document on record. Even during during investigation, she had not made any statement that the petitioner had executed the Ikrarnama in her favour and also at the time of recording her statement under Sections 161 & 164 of the Criminal Procedure Code, she had not made any statement in this regard and had not presented the same before the investigating officer.
Reference was made to the judgment of the Apex Court in Rakesh Mohindra v. Anita Beri and Ors. (2016) wherein the Supreme Court has observed that unless, it is established that the original documents are lost or destroyed or are 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.
“Therefore, document (Ex-P/19) is not the part of charge-sheet and for the first time during the course of cross-examination, she has made statement and produced the same before learned trial Court, which has been accepted by the learned trial court without recording the objection of the petitioner that original copy of the said document has not been produced by the victim / respondent No.2, which is per se illegal, improper and contrary to law laid down by the Supreme Court in above-stated judgments”, the Bench said.
Thus, allowing the Petition, the Bench held, “...the order dated 20.06.2022 passed by the trial Court to the extent of taking the photocopy of the Ikrarnama produced by the victim at the time of cross-examination and marking the same as Ex-P/19 is hereby quashed. The trial Court is directed to expedite the trial and conclude the same expeditiously.”
Cause Title: Vijay Uraon v. State Of Chhattisgarh (Neutral Citation: 2025:CGHC:25040-DB)
Appearance
Petitioner: Advocate Ravindra Sharma
Respondents: Panel Lawyer Malay Jain, Advocate Vivek Bhakta