In CRR-690-2022 (O&M)-PUNJ HC-Application for leading secondary evidence can be permitted when existence of primary evidence and its loss or destruction is established, holds P&H HC
Justice Jasjit Singh Bedi [27-03-2023]

Read Order: AMARJIT SINGH @ BALI vs STATE OF PUNJAB 

Mansimran Kaur

Chandigarh, March 28,2023: Referring to Sections 63 & 65 of the Evidence Act, the Punjab and Haryana High Court has opined that for leading secondary evidence with respect to a document, the existence, execution and loss of the primary evidence must be established.

While noting that the defence of an accused ought not to be curtailed, moreso, when there is hardly any doubt of the existence and current availability of the original inquiry report, the Single-Judge Bench of Justice Jasjit Singh Bedi allowed the revision petition against an Order through which an application under Section 65 of the Indian Evidence Act filed by the petitioner/accused for proving the inquiry report by way of leading secondary evidence was dismissed.

The brief facts of the case were such  that an FIR under Sections 302/34  of IPC came to be registered at the instance of Lakhwinder Singh against the petitioner and his co-accused namely, Lovepreet Singh @ Kinnu, Bhupinder Singh @ Happy and Kuljit Singh @ Gandhi with the allegations that  all of them had caused injuries to the deceased-Sukchain Singh  on June 30, 2019 consequent to which, he had died. 

During the course of investigation, it was the case of the petitioner that he was found innocent on account of him being at Gurdwara Baru Sahib, Himachal Pradesh on the date and time of the occurrence. However, nevertheless, a report under Section 173(2) Cr.P.C. came to be submitted against the petitioner along with Lovepreet Singh, Bhupinder Singh and Kuljit Singh.

During the course of Trial SI/SHO Amandeep Singh who was stated to have prepared an inquiry report exonerating the petitioner was examined. He denied the factum of him submitting a report exonerating the petitioner. He was declared hostile. Subsequently, the instant application was moved to lead secondary evidence i.e. to produce on record the photocopy of the said inquiry report in the possession of the petitioner.

The aforementioned application to lead secondary evidence was declined by the Trial Court holding that the existence of the primary evidence had not been established in accordance with law. It was this order which was under challenge in the present case. 

After considering the submissions of the parties , the Court deemed it apposite to refer to Section 65 and Section 114 of the Indian Evidence Act.

Further reliance was placed on the judgment in Jagmail Singh & Another Versus Karamjit Singh & Others, wherein it was held 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. 

Further reference was also made to the judgment in  Prem Lata Versus Dwarka Parsad & others. 

“A perusal of Sections 63 and 65 of the Evidence Act, 1872 along with the judgments (supra) would show that for leading secondary evidence with respect to a document, the existence, execution and loss of the primary evidence i.e. the original inquiry report in this case must be established. It is only when the existence of the primary evidence and its loss or destruction is established, can an application for leading secondary evidence with respect to the same document be permitted,” the Court noted. 

In furtherance of the same, the Court also noted that once the defence evidence separately also corroborates the conclusion arrived at in an inquiry, the veracity of the original inquiry report being in existence but not available cannot be doubted. 

Mentioning that conviction in a murder case entails capital punishment and the defence of an accused ought not to be curtailed, the Bench allowed the application of the petitioner. The petitioner was granted permission to prove by way of secondary evidence, the photocopy of the report of SHO/SI Amandeep Singh. Hence, the revision petition was accordingly allowed.