Secondary evidence is admissible under Section 65 of the Evidence Act when the original document is lost or destroyed, ensuring no prejudice to the accused.

ORDER

1. Instant misc. petition has been filed by the petitioner under Section 482 Cr.P.C against the order dated 21.02.2019 passed by learned Additional District and Sessions Judge, Gharsana, District Sriganganagar whereby , the learned revisional court dismissed the revision petition and affirmed the order passed by learned Judicial Magistrate, Gharsana dated 06.03.2018 allowing the application filed by prosecution under Section 65 of Evidence.

2. Brief facts of the case are that the respondent no.2 lodged a FIR against the petitioner and Shiv prakash (died) stating therein that the petitioner stole five khejari trees which were lying in Killa NO. 3 and 4 of Square No. 97/28. These trees were seized by the Land Record Inspector, Rawla and the complainant was directed to visit the place and make site plan. The complainant visited the place and made a site plan and upon his report, FIR No. 135/2005 came to be registered at Police Station Rawla for offence under Section 379 IPC. After investigation, the police filed negative Final report. the complainant filed a protest petition and after recording his statement, the learned trial court took cognizance against the petitioner and Shiv Prakash and trial commenced.

3. During trial, statement of four witnesses were recorded and thereafter, an application under Section 65 of the Evidence Act was filed by the prosecution for taking on record the photocopy of site plan of the place of incident as the original inspection memo was not traceable in the office of SDM, Gharsana and this photocopy of site plan may be exhibited as secondary evidence.

4. After hearing both the parties, the learned trial court allowed the application filed by the prosecution vide order dated 06.03.2018 with the observation that there shall not be any adverse affect on the accused in allowing the application and the accused had right to cross-examine the witnesses with regard to this document. Feeling aggrieved, the petitioner filed a revision petition, which came to be dismissed vide order dated 21.02.2019. Hence, this misc. petition.

5. Counsel for the petitioner submits that the petitioner had sought copy of the mauka report from the office of SDM, Gharsana and it was informed that record of Mauka report is not available in the office record and therefore, it creates doubt on the authenticity of the photocopy of site plan. It is further argued that no inquiry was conducted by the authorities about the missing document and no action was taken by the authorities. therefore, no such document exists and therefore, impugned order for taking the photocopy of Mauka report as secondary evidence is wholly illegal.

6. Learned Public Prosecutor supported the impugned orders and submitted that both the courts below have discussed each and every aspect of the matter and have rightly allowed the application under Section 65 of the Evidence Act, which does not called for any interference.

7. I have considered the rival arguments and carefully gone through the material on record.

8. Under Section 65 of the Evidence Act, it is provided that in what cases/conditions secondary evidence relating to documents is permissible. For ready reference Section 65 of the Evidence Act are reproduced herein below:-

"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) ....

(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