The central legal point established in the judgment is the necessity for the prosecution to establish the background material and comply with the mandatory provisions of the Indian Evidence Act when seeking to lead secondary evidence.

ARVIND SINGH SANGWAN, J.

1. Prayer in this petition is for setting-aside the order dated 30.10.2017 vide which the application filed by the petitioner for leading secondary evidence to prove the Death Certificate of one Gurnam Kaur, in FIR No.98 dated 11.04.2013 registered under Sections 419, 420, 465, 467, 468, 471 and 120-B of the Indian Penal Code (in short 'IPC'), was dismissed.

2. Brief facts of the case are that the petitioner got the aforesaid FIR registered against the accused persons with the allegations that he is in possession of the disputed land and the accused persons in conspiracy and connivance with the revenue official forged a fake Death Certificate of one Gurnam Kaur and on the basis of the same, got the mutation of land measuring 102 bigha in favour of Pritam Singh. The petitioner submitted a complaint before the Sub Divisional Magistrate, Sangrur and after conducting an enquiry, found that the Death Certificate was fake and on the basis of the report, the aforesaid FIR No.98 was registered.

3. After completing the investigation, challan was presented against 02 accused persons namely Buta Ram and Harbans Singh.

4. Thereafter, on an application moved by the prosecution under Section 319 Cr.P.C. Hardial Singh, Patwari was also summoned as an accused vide order dated 21.09.2016.

5. The petitioner has moved an application under Section 311 Cr.P.C. for allowing him to lead secondary evidence to prove the photocopy of the Death Certificate of Gurnam Kaur, on the basis of which the mutation was sanctioned.

6. The trial Court vide impugned order dated 30.10.2017, dismissed the application. The operative part of the order reads as follows:-

7. Having heard the submissions behalf of the rival sides a perusal of the record shows that in this case no attempt has been made by the prosecution to reveal as to in whose possession exactly the forged death certificate is in. The application does not ascribe directly as to which among the accused is in direct possession of the original forged death certificate. There is nothing on the record suggest that any attempt has been made by the prosecution to trace out the whereabouts of the original death certificate. After conclusion of the detailed investigation, which includes an inquiry conducted at his own level by the SDM is to, the prosecution had filed the challan in this case along with copy of the death certificate which is reported to have been forged by the accused. However, no attempt had been made during the investigation by the prosecution to locate the whereabouts of the original death certificate. No application was made by the prosecution under section 91 Cr. PC during the investigation to direct the accused to produce the original death certificate. Without moving any such appropriate application, the prosecution is to within its right in arguing that one among the accused is in possession of the original forged death certificate.

8. As per the ordinary procedure carried out in routine by the revenue authorities, whenever the mutation is entered regarding the death of a person and succession to the property of such a person, the routine exercises that the original document of death is produced betore the revenue officer i.e. Patwari. The original document is kept in the register roznamcha of the Patwari. During the investigation, no effort seems to have been made by the investigating team's to have taken into its possession the original forged death certificate from the Patwari from his roznamcha. It is also pertinent to be mentioned here that the Patwari was By name as a witness in this case but it was not mentioned that he would be required to produce the original death certificate. There is nothing in the record suggests that the investigating team at satisfied itself that the original death certificate was in the possession of the Patwari. Later on, the said Patwari has been Summoned as an additional accused in this case by the Ld. Predecessor of the Court