JUDGMENT

Sanjay K. Agrawal, J. - In compliance of the order passed and direction issued by the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.9703/2019 (Pankaj Kumar Sharma v. State of Chhattisgarh) on 16-12-2019, the matter has been placed for consideration and with the consent of parties, the matter is heard finally.

2. The petitioner herein who is an accused standing trial for commission of offences punishable under Sections 302, 302 read with Section 34, 120B, 201 of the IPC and Sections 25 and 27 of the Arms Act, 1925, takes exception to the impugned order dated 31-7-2017 passed by the learned Sessions Judge, Raipur in Sessions Trial No.197/2012 by which the application filed by the respondent / prosecution for taking secondary evidence has been allowed and the prosecution has been permitted to adduce secondary evidence of the receipt given by Lalaram Banjare - one of the co-accused, to deceased Dilip Adwani, on the following factual background: -

3. It is the case of the prosecution that on 14-5- 2012, Dilip Advani was assassinated by the petitioner along with other co-accused persons, as Dilip Advani and witness Rakesh Lakhwani advanced Rs. 1,75,00,000/- to Lalaram Banjare for executing sale deed for the land agreed to be sold to them, but sale deeds were not executed in their favour and when they sought refund of money, they made a conspiracy and killed Dilip Advani for which they were charge-sheeted on 24-9-2012. During the course of trial, the application filed by the prosecution under Section 91 of the CrPC was rejected on 11-8-2016. Thereafter, the prosecution filed supplementary charge-sheet on 7-11-2016 along with list of 21 additional witnesses and also one seizure memo along with receipt issued by Lalaram Banjare about the monetary transaction of Rs. 1,75,00,000/- was filed. The additional statement of Rakesh Lakhwani under Section 161 of the CrPC was also recorded on 14-9-2016 who stated that original receipt was given on Supurdnama to him on 14-9-2016. The prosecution filed an application on 22-11-2016 for accepting the supplementary chargesheet which the trial Court accepted by order dated 1-12-2016 rejecting the objections raised by the accused persons including the petitioner herein and supplementary charge-sheet was taken on record. Thereafter, Court statement of one of the witnesses Rakesh Lakhwani was recorded on 13-7-2017 where he had admitted the seizure of receipt and further stated that he had taken back its original on Supurdnama and also stated that the original was lost in change of his residence. On the same day, the prosecution, filed an application under Section 65 of the Indian Evidence Act, 1872 (for short, 'the Evidence Act') to adduce secondary evidence of that document which was opposed only by co-accused Lalaram Banjare other than the petitioner by filing written reply. No written reply was filed by any person including the petitioner. The learned Sessions Judge by its order dated 31-7-2017 allowed the application holding that since the original receipt is lost which was given on Supurdnama to Rakesh Lakhwani on 14-9-2016, therefore, the prosecution is permitted to adduce secondary evidence of that document. Questioning the order granting application under Section 65 of the Evidence Act, this petition under Section 482 of the CrPC has been preferred by one of the accused / the petitioner herein.

4. Mr. N. Naha Roy, learned counsel appearing for the petitioner, would submit that the learned Sessions Judge is absolutely unjustified in granting application under Section 65 of the Evidence Act. He would further submit that photocopy of the said document / receipt is not prepared from the original as required under Section 63(2) of the Evidence Act and compliance of Section 65(c) of the Evidence Act is also not available, therefore, the learned Sessions Judge is absolutely unjustified in granting the application. He would rely upon the decision of the Supreme Court in the matter of