Important Point: For the production of secondary evidence it must be established that primary evidence cannot be produced. That the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used.

1. Petitioner has filed this Misc. Petition under Section 482 Cr.P.C. assailing the legality and propriety of order dated 22.02.2017 passed by learned Additional District Judge, Srikaranpur, District Sriganganagar (for short ‘learned trial Court’) in Sessions Case No. 24/2011, whereby the learned trial Court has rejected the application filed by the petitioner under Section 65 of the Indian Evidence Act, 1872 (for short ‘Act of 1872’) for taking on record photostat copy of C.T. Scan Report as secondary evidence.

2. In a nutshell, facts of the case are that on 12.05.2010 during treatment, Parcha Bayan of petitioner-complainant was recorded by Police wherein he alleged that in the night of 12.05.2010 at about 4:00 AM, when he along with his father and others was irrigating the agricultural field, accused persons came there and a blow of kassi was given on his head. Upon the said Parcha Bayan, FIR No. 84/2010 came to be registered at Police Station Srikaranpur against accused persons including respondent no. 2 for offence punishable under Sections 307, 341, 323 and 34 IPC. During trial, petitioner moved an application under Section 65 of the Act of 1872 for treating zerox copy of C.T. Scan Report as secondary evidence with the assertion that earlier original C.T. Scan Report could not be placed on record as the same was lying with Medical Officer, Community Health Centre, Srikaranpur and was not in his possession.

3. Learned trial Court, after hearing the parties, vide order dated 22.02.2017, rejected the application of petitioner observing that neither any doctor had referred for C.T. Scan, nor the Investigating Officer made recommendation for such C.T. Scan, therefore, photostat copies of the documents issued by Radiology Maharaja C.T. Scan Centre are not at all admissible as secondary evidence. The learned trial Court has also observed that the said application is filed only in order to linger on the trial proceedings.

4. Mr. Pankaj Gupta, learned counsel for the petitioner, submits that a photostat copy of the C.T. Scan Report was submitted along with charge-sheet and on that basis, charge for offence under Section 307 IPC was framed, therefore, the learned trial Court ought to have treated the same as secondary evidence. It is also submitted by learned counsel that since original C.T. Scan Report was not available with the petitioner, therefore, the same was not submitted before the learned trial Court and thus there is no fault on his part in not producing the same.

5. Learned Public Prosecutor, appearing for the respondent-State, has countered the arguments advanced by learned counsel for the petitioner and submits that there is no illegality or perversity in the impugned order, and therefore, no interference with the impugned order is warranted.

6. I have heard learned counsel for the parties and perused the impugned order.

7. Section 65 of the Act of 1872 envisages certain cases in which secondary evidence relating to documents may be given including the contingencies when original document 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 but not by preparing it mechanically, which is not part of the charge-sheet. In the instant case, the petitioner wants that zerox copy of the CT Scan Report may be taken on record as secondary evidence under Section 65 of the Act of 1872, however, as the same itself is of disputable character and the original C.T. Scan Report was not produced at the inception, therefore, same cannot be allowed as secondary evidence at this stage to be admitted.

8. The party which seeks 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