Mukesh Kumar Alias Motta v. State Of Haryana

JUDGEMENT :-

S.S.Saron, J.

1 Cr. Misc. No. 38899 of 2010 :

1. Copy of the FIR (Annexure-P.5), copy of the agreement to sell (Annexure- P.6), copy of Pronote and receipt (Annexure-P.7) and disclosure statement of Ombir Singh alias Mintu (Annexure-P.8) attached with the criminal miscellaneous application are taken on record subject to just exceptions.

2 The criminal miscellaneous application stands disposed of. Cr. Rev. No. 1788 of 2010 : The criminal revision petition has been filed against the order dated 8.5.2010 whereby the permission to lead secondary evidence filed by the accused regarding agreement to sell dated 1.9.2008 (Annexure-P.6) and Pronote and receipt (Annexure-P.7) has been declined.

3 The petitioner is facing trial for the offences under Sections 302, 201, 120-B and 34 IPC.

4 The FIR (Annexure-P.5) has been registered on the statement of Ram Kumar who has alleged that on 3.9.2008 at about 11.00 a.m. he came to know that one dead body of an unknown person was lying in the `Bani' of the village. On this information, the complainant and many other villagers went to the `Bani' and saw an unidentified body, which had a noose around its neck, besides, the feet were burnt. Moreover, near the dead body two plastic glasses and one DEU bottle was lying. The death of the unknown person had been caused by some persons by putting a noose around its neck and burning him.

5 During the trial of the case the petitioner Mukesh Kumar alias Motta and four other co-accused i.e. Ombir Singh alias Neetu, Om Parkash alias Molar, Dinesh and Govind were charge-sheeted for the offences under Sections 302, 201, 120-B and 34 IPC. The petitioner filed an application before the learned trial Court for permission to lead secondary evidence regarding agreement to sell dated 1.9.2008 (Annexure-P.6) and pronote and receipt (Annexure-P.7) regarding return of Rs. 1 Lac along with interest to Roshan Lal brother of Om Parkash on 5.9.2009. Balwant Singh (DW-2) had appeared before the trial Court and he deposed that he executed the agreement to sell on 1.9.2008 and returned the original amount of Rs. 1 Lac along with interest to Roshan Lal, brother of Om Parkash on 2.9.2008. Secondly, the original agreement dated 1.9.2008 had been destroyed by him and correct photostat copy of the agreement was already on the case file. Accordingly, it was prayed for the grant of permission to prove the agreement dated 1.9.2008 and pronote and receipt dated 2.9.2008 by way of secondary evidence.

6 In the reply filed by the prosecution it was stated that there was no evidence to show that photostat copies of the documents in question had been properly drafted and the person who had got the said photostat taken, had not appeared before the Court. Otherwise also, the evidence of Balwant Singh (DW- 2) and Chandgi Ram (DW-3) makes it clear that in the circumstances the said application for grant of permission to lead secondary evidence was not liable to be allowed.

7 The learned trial Court after considering the matter observed that photostat copies of the documents i.e. agreement to sell dated 1.9.2008 and pronote and receipt dated 2.9.2008 have been produced. No reason has been given by Balwant Singh (DW-2) and Chandgi Ram (DW-3) as to why photostat copies have been retained after the original had been destroyed. It was also stated that the photostat copies of the documents in question produced on record were not got done by the said witnesses. It was further observed that it was necessary on behalf of the accused to prove the loss of original documents and the photostat copies of the same itself came from proper custody. The photostat copies had not been got done by the witnesses who were examined in defence. Accordingly, the application was dismissed.

8 Learned counsel for the petitioner has contended that once the documents have been destroyed, the secondary evidence in the form of photostat copies is liable to be allowed to be proved. A reference is made to the provisions of Section 65 of the Evidence Act. It is submitted that when the original of the documents have been destroyed or lost, the application for leading secondary evidence can be allowed.

9 I have given him thoughtful consideration to the contentions of the learned counsel for the petitioner. In order to appreciate the same a reference may be made to Section 65 of the Evidence Act which reads as under :-

"65. Case 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 moveable;

(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 60 (India) to be given in evidence;

(g) when the originals consist 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 not 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."

10 A perusal of the above shows that it relates to cases in which secondary evidence relating to documents may be given. It is mentioned that secondary evidence may be given of existence of contents of documents in the cases as mentioned therein. It may be noticed that the original of the documents were in the custody and possession of Balwant Ram (DW-2) and Chandgi Ram (DW-3). They appeared in evidence and stated that they had destroyed the original documents in question. Besides, they were having photostat copies of the same. It is, however, not understood as to how the petitioner has been able to get the copies of the same. Photostat copies of documents can be prepared by manipulation and presented as original. Therefore, it would normally be unsafe on the mere asking to allow production of photostat copies as secondary evidence. These are admittedly not certified copies of the original and it is not clear as to whether these are copies of the original. The basic principle with respect to evidence that is to be produced is that the best evidence available ought to be produced. Original document is the best and primary evidence. Section 65 provides other alternative methods for producing and proving documents, which for various reasons cannot be produced. Secondary evidence is admissible in respect of conditions mentioned in clauses (a) to (g) of Section 65. The purpose is to give protection to such persons who despite their intentions and efforts are unable in view of circumstances beyond their control produce on record the primary evidence. If, however, the document is destroyed by the person in whom it created an enforceable legal right or an obligation then the secondary evidence of the same is not normally to be allowed. In Chaudhuri Janardan Parida and others v. Prandhan Das, AIR 1940 Patna 245 (DB), it was observed as follows :-

"When there is document and under the law no other evidence other than the document itself or secondary evidence of its contents can be used to prove a contract, the document, if available, must be produced before the Court or a case must be made out for admitting secondary evidence. But if the plaintiff who sues upon that document has made alternations, interpolations in it, he has not placed the original document before the Court as the document has lost its identity by having been altered in the meantime, and as he himself has been responsible for destroying its identity, he cannot in justice and equity be allowed to adduce secondary evidence of its contents."

11 Therefore, it may be noticed that to permit secondary evidence of such a document which has been destroyed by a person in whose possession it was and in whose favour it created an enforceable legal right or an obligation is normally not to be allowed as secondary evidence. The secondary evidence of such a document may be tampered with or changed and it would be against public policy to take a chance of running the risk of fraud being committed. Besides, the destruction of the instrument may make a party liable for a contract which had either not been agreed to or had been rescinded with the destruction of document. Therefore, secondary evidence in such circumstances where document itself has been destroyed by the person in whom it created an enforceable legal right or an obligation is normally not be allowed.

12 In the present case Balwant Singh (DW-2) had appeared and deposed that he executed the agreement to sell on 1.9.2008 and returned the original amount of Rs. 1 Lac along with interest to Roshan Lal brother of Om Parkash on 20.9.2008. Besides, Chandgi Ram (DW-3) appeared and deposed that the pronote and receipt dated 2.9.2008 had been destroyed by him after making repayment of loan and interest and that the correct photo copy of the pronote and receipt had already been produced on the record. The agreement dated 1.9.2008, it is stated by Balwant Singh (DW-2), had been destroyed by him. Besides, the pronote and receipt dated 2.9.2008, it is stated by Chandgi Ram (DW-3) had been destroyed by him after making repayment of loan and interest. Therefore, the agreement dated 1.9.2008 had been destroyed by Balwant Singh (DW-2) himself and it was an agreement which created an enforceable legal right which had been destroyed after the amount of Rs. 1 Lac and interest has been given to Roshan Lal. Besides, the pronote and receipt dated 2.9.2008 had been destroyed by Chandgi Ram (DW-3) which also created an enforceable legal right or an obligation. Therefore, the agreement and the pronote-cumreceipt which are sought to be produced by way of secondary evidence had lost their character and identity. Such documents are, therefore, not to be admitted or taken in evidence by way of secondary evidence as chances of their alteration or otherwise tampering with cannot be ruled out.

13 In the circumstances, the learned trial Court has rightly declined the said application. The criminal revision petition is, therefore devoid of merit and is dismissed. Petition dismissed.