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2025:CGHC:25040-DB
BABLU AFR
RAJENDRA
BHANARKAR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Digitally signed by
BABLU RAJENDRA
BHANARKAR
Date: 2025.06.18
14:24:06 +0530
CRMP No. 1108 of 2022
Vijay Uraon S/o Harishankar Aged About 25 Years R/o Village Kenapali,
Jorapali, Police Station Kotraroad, District Raigarh Chhattisgarh.,
District : Raigarh, Chhattisgarh
--- Petitioner
versus
1 - State Of Chhattisgarh Through S.H.O. Police Station Chandrapur
District Janjgir Champa Chhattisgarh., District : Janjgir-Champa,
Chhattisgarh
2 – XYX (Complainant)
--- Respondents
For Petitioner : Mr.Ravindra Sharma, Advocate
For Respondent : Mr.Malay Jain, Panel Lawyer
No.1/State
For Respondent : Mr.Vivek Bhakta, Advocate
No.2
Hon’ble Mr. Ramesh Sinha, Chief Justice
Hon’ble Mr. Bibhu Datta Guru, Judge
Order on Board
Per Ramesh Sinha, Chief Justice
17/06/2025
1. Heard Mr.Ravindra Sharma, learned counsel for the petitioner as
well as Mr.Malay Jain, learned Panel Lawyer appearing for
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respondent No.1/State and Mr.Vivek Bhakta, learned counsel
appearing for respondent No.2.
2. By this petition under Section 482 of the CrPC, the petitioner has
prayed for the following relief(s):
“It is therefore prayer that the Hon'ble court may kindly
be pleased to allow the instant criminal miscellaneous
petition and may kindly be pleased to quash the order
dated 20.06.2022 to the extent of taking the photocopy
of the document/agreement produced by the prosecutrix
at the time of cross-examination and marking the same
as Ex-P/19, and may kindly be please to direct the
learned Trial Court that the evidence recorded in this
regard at para-53 of cross-examination of prosecutrix
may not be taken into consideration while passing the
final judgment, in the interest of justice.”
3. Brief facts necessary for disposal of this case are that the
complainant/respondent No.2 lodged a written complaint against
the petitioner on 24.02.2022 stating that on the pretext of
marriage the petitioner has committed sexual intercourse with her
and presently he has refused to marry with her and cheated her,
therefore she lodged the complaint against him. On the complaint
of the victim, Police Station Chandrapur District Janjgir-Champa
registered the case in Crime No. 26/2022 for offence punishable
under Sections 376 and 417 of the IPC and arrested the
petitioner on 26.02.2022.
4. During the investigation, the police of Police Station Chandrapur
recorded the statement of the victim under Sections 161 & 164 of
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the Criminal Procedure Code and after completion of
investigation, the police filed the charge-sheet on 10.03.2022.
After filing of charge sheet, learned trial Court framed the charges
against the petitioner for offence punishable under Sections 376
& 417 of the IPC and fixed the case for evidence on 20.06.2022.
During the course of cross-examination of the victim on
20.06.2022, the victim produced one agreement / Ikrarnama
dated 29.08.2021 stating that the same has been executed by the
petitioner and his signature is present in the said agreement on
part 'A' to 'A'. Learned trial court accepted the said document and
marked the same as Ex-P/19 at para-53 of cross-examination.
5. The victim/respondent No.2 has not filed any application for
taking document on record regarding Ex-P/19 and during the
course of investigation she has not made any statement that the
petitioner/accused has executed an agreement in her favour and
that at the time of recording of statement under Sections 161 &
164 of the Criminal Procedure Code she has not made any
statement in this regard and has not presented the same before
the investigating officer. Therefore, document (Ex-P/19) is not the
part of charge-sheet, and that 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/
accused, which is illegal, improper and contrary to the law, and it
will cause serious prejudice to the petitioner/accused, and it is
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also against the principle of natural justice. Hence the criminal
miscellaneous petition.
6. Learned counsel for the petitioner submits that during cross
examination a photo-copy of the Ikrarnama was produced by the
victim to show that it bears the signature of the petitioner and
without any notice the photo-copy was accepted by the trial Court
and exhibited as P-19. He further submits that acceptance of
such document is gross violation of Section 66 of the Indian
Evidence Act, 1872 as no notice was given to produce such
document and directly it was produced before the concerned
court by the victim saying that it bears the signature of the
petitioner and original document is in possession of the petitioner.
He also submits that acceptance of such document as exhibit
would lead to miscarriage of justice. As such, the petition
deserves to be allowed and the order dated 20.06.2022 passed
by the trial Court to the extent of taking the photocopy of the
document/agreement produced by the victim at the time of cross-
examination and marking the same as Ex-P/19 deserves to be
set aside.
7. On the other hand, learned counsel appearing for respondent
No.2 supports the order passed by learned trial Court, but on a
pointed query being made from learned counsel appearing for
respondent No.2 whether she has the original document, then he
denied the same and only stated that it is with the petitioner.
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8. We have heard learned counsel for the parties, perused the
impugned order and other documents appended with petition.
9. For proper appraisal of the matter in controversy, it would be
appropriate to reproduce Sections 65 and 66 of the Indian
Evidence Act which read as under :-
“65. Cases in which secondary evidence relating
to documents may be given.—Secondary evidence
may be given of the existence, condition, or contents
of a document in the following cases:-
(a) When the original is shown or appears to be in the
possession or power—
of the person against whom the document is sought to
be proved, 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 the notice
mentioned in section 66, such person does not
produce it;
(b) when the existence, condition or contents of the
original have been proved to be admitted in writing by
the person against whom it is proved or by his
representative in interest;
(c) when the original 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;
(d) when the original is of such a nature as not to be
easily movable;
(e) when the original is a public document within the
meaning of section 74;
(f) when the original is a document of which a certified
copy is permitted by this Act, or by any other law in
force in India to be given in evidence;
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(g) when the originals consists of numerous accounts
or other documents which cannot conveniently be
examined in Court, and the fact to be proved is the
general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of
the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but
no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general
result of the documents by any person who has
examined them, and who is skilled in the examination
of such documents.
66. Rules as to notice to produce.-Secondary
evidence of the contents of the documents referred to
in section 65, clause (a), shall not be given unless the
party proposing to give such secondary evidence has
previously given to the party in whose possession or
power the document is, [or to his attorney or pleader]
such notice to produce it as is prescribed by law; and
if no notice is prescribed by law, then such notice as
the Court considers reasonable under the
circumstances of the case:
Provided that such notice shall not be required
in order to render secondary evidence admissible in
any of the following cases, or in any other case in
which the Court thinks fit to dispense with it:—
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse
party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party
has obtained possession of the original by fraud or
force;
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(4) when the adverse party or his agent has the
original in Court;
(5) when the adverse party or his agent has admitted
the loss of the document;
(6) when the person in possession of the document is
out of reach of, or not subject to, the process of the
Court.”
10.A perusal of Section 65 makes it clear 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.
11.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.
12.The issue arising out of somewhat similar facts and
circumstances has been considered by the Supreme Court in
Ashok Dulichand v. Madahavlal Dube and Anr., [1976] 1 SCR
246 and it was held as under :-
“According to Clause (a) of Section 65 of Indian
Evidence Act, Secondary evidence may be given of
the existence, condition or contents of a document
when the original is shown or appears to be in
possession or power of the person against whom
the document is sought to be proved or of any
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person out of reach of, or not subject to, the
process of the Court of any person legally bound to
produce it, and when, after the notice mentioned in
Section 66 such person does not produce it.
Clauses (b) to (g) of Section 65 specify some other
contingencies wherein secondary evidence relating
to a document may be given.”
13.In the matter of Rakesh Mohindra v. Anita Beri and Ors. (2016)
16 SCC 483 the Supreme Court has observed as under:-
“15. The preconditions for leading secondary
evidence are that such original documents could
not be produced by the party relying upon such
documents in spite of best efforts, unable to
produce the same which is beyond their control.
The party sought 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 accepted.”
14.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.
15.In the case in hand, it is admitted position on record that the
victim/respondent No.2 has not filed any application for taking
document on record regarding Ex-P/19. Even during during the
course of investigation, she has not made any statement that the
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petitioner has 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 has not made any statement in
this regard and has not presented the same before the
investigating officer. 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.
16.For the foregoing reasons, the petition is allowed and 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.
17.A copy of this order be sent to the concerned trial Court forthwith.
Sd/- Sd/-
(Bibhu Datta Guru) (Ramesh Sinha)
JUDGE CHIEF JUSTICE
Bablu
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Unless, it is established that the original document is lost or
destroyed or is being deliberately withheld by the party, secondary
evidence in respect of that document cannot accepted.
