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 provi