2025:CGHC:48871 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1341 of 2023 Lokesh @ Lokeshwar Prasad Dewangan S/o Shri Bhuneshwar Prasad Dewangan Aged About 30 Years (Now 30) Years, R/o Krishna Vihar Colony, Kawardha, Police Station And Tahsil Kawardha, District : Kawardha (Kabirdham), Chhattisgarh ... Petitioner(s) versus State Of Chhattisgarh Through Station House Officer, Police Station Kawardha, District : Kawardha (Kabirdham), Chhattisgarh ... Respondent(s) (Cause title is taken from the CIS) ------------------------------------------------------------------------------------------------------------------ For Petitioner : Shri Dharmesh Shrivastava, Advocate For Respondent/State : Shri SK Pandey, Dy AG ------------------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 23.09.2025 1. Present CRMP has been filed by the petitioner / accused against the order dated 28.03.2023 passed by the learned Special Judge, Atrocities Act, Kabeerdham, in Special Case-690 of 2020, whereby the application filed by the prosecution under Section 63 of the Indian Evidence Act, 1872 has been allowed and xerox copy of the suicidal note has been taken as secondary evidence in the record and permitted the prosecution to prove the same. Digitally signed by V PADMAVATHI Date: 2026.01.09 10:41:27 +0530 Crmp 1341 of 2023 2 2. The subject matter of the case in brief is that the petitioner is accused in the Special Criminal case-690 of 2020, which was arising out of Crime No.293 of 2019, and charge-sheet was filed against the petitioner for commission of offence under Sections 306, 509 B of the IPC, and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act) 1959 (for short, “SC/ST Act”). It is alleged that on 20.07.2018 at about 5 pm, the deceased, who was a woman aged about 25 years committed suicide in her room by hanging herself to the ceiling fan. During the investigation, statement of the witnesses were recorded, in which it was disclosed that present petitioner sexually exploited the deceased for extracting money from her after giving threatening that he was having her obscene photographs and they will be uploaded in the social media and ultimately he uploaded the same, due to which, the deceased annoyed by the act of the petitioner, on 20.07.2018 committed suicide. It is also alleged that during the investigation, a suicidal note which was written in a note book has also been seized by the Police from the room of the deceased, and after completion of the investigation, charge-sheet was filed against the petitioner. On 27.08.2021 charges for the offence under section 306, 509 (b) of the IPC and section 3(2)(v) of the SC/ST Act have been framed against the petitioner and the learned trial court proceeded for trial and recorded the evidence. 3. On 16.03.2023, prosecution had filed an application under Section 63 of the Indian Evidence Act 1872 along with a xerox copy of suicidal Crmp 1341 of 2023 3 note stating therein that during the investigation, suicidal note was seized from the spot, however, the said note in original could not be annexed with the charge-sheet and it was also not available in the case diary. Despite every effort to search, it could not be found, and its original copy is missing. The said suicidal note is vital and important document in the case. However, during search, xerox copy was found by the police which has been filed along with the application for taking the same as the secondary evidence. The application was replied by the accused on 17.03.2023 and thereafter, on hearing the parties, the application filed by the prosecution under section 63 of the Indian Evidence Act was allowed vide order dated 28.03.2023, the xerox copy of the suicidal note has been taken on record as secondary evidence and the trial court proceeded for recording of the other evidence. The said order dated 28.03.2023 is under challenge in the present petition. 4. Learned counsel appearing for the petitioner would submit that without following the procedure prescribed under section 65 of the Evidence Act, 1872, the secondary evidence can not be taken on record. The prosecution has to prove the existence of said xerox copy of suicidal note, and missing of its original version of the same. Without the original copy, which is said to be missing, the prosecution has failed to prove the source of the said xerox copy as to how and from where they got the xerox copy of the document. He would also submit that in the application filed by the prosecution, they have averred that they got the attested true copy of the suicidal note. However, how the attested true copy of the said Crmp 1341 of 2023 4 suicidal note has been prepared in absence of the original also has not been proved by the prosecution. The said suicidal note was not produced along with the charge-sheet, and it is not available in the case diary also, therefore, the source of that suicidal note ought to have been disclosed by the prosecution. Earlier, petitioner had also filed an application under 207 of the CRPC but copy of the said document has not been supplied. The prosecution has failed to explain as to what were the circumstances under which the xerox copy of the document was prepared and who was in possession of the original document. At the time of preparation of the xerox copy, it is neither primary evidence nor secondary evidence, and it is not admissible in evidence. Yet, the learned trial court allowed the application against the settled law, and therefore, the impugned order dated 28.03.2023 with respect to allowed the application filed by the prosecution under section 63 of the Evidence Act is liable to be set aside. 5. Learned counsel for the petitioner would rely upon the following judgments: 1) Vijay Vs Union of India and others, 2023 SCC Online SC 1585 2) U.Sree Vs U Srinivas, (2013) 2 SCC 114 3) J Yashoda Vs K Shobharani, (2007) 5 SCC 730 4) Jaiprakash Gupta Vs State of Chhattisgarh, 2020 SCC Online CG 1130 5) Kranti Kumar Vs Ku.Kiran Shrivastava and others, 2020 SCC Online CG1212 Crmp 1341 of 2023 5 6) Murlidhar Makhija and others VS State, decided by this Court on 10.03.2022 in CRR-547 of 2019 7) Vishnu Pratap Singh VS Mukteshwar Rai and others, decided by this Court on 01.05.2024 in WP227-751 of 2019 6. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the petitioner, and submitted that during the investigation, suicidal note was seized from the room of the deceased, which was sent for its examination from the State examiner of questioned document to the FSL Raipur, for examining the handwriting of the deceased on the said note, however, in that period, the Investigating Officer was changed, and the suicidal note is missing, and could not be traced out as to where it was laid. After making effort to trace it out, its xerox copy was found in the 2nd copy of case diary, and then, it was produced before the learned trial Court. He would also submit that in the final report, the submission of the said suicidal note was also mentioned at Sl.No.1 in the column of the property details. He would also submit that on 20.01.2021, petitioner has filed an application under Section 207 of the CrPC, claiming for a copy of the said suicidal note, however, he had withdrawn the same as not pressed on 16.08.2021, meaning thereby, he was well within the knowledge of seizure of suicidal note, and having copy of the same with the petitioner. He would also submit that after allowing the application filed by the prosecution, witnesses have been cross-examined by the petitioner/accused on the said suicidal note, and thereafter, he had filed an application under Crmp 1341 of 2023 6 Section 45 of the Evidence Act on 12.06.2023 for examination of the said note by handwriting expert Dr Sunanda Dhange. Said application of the petitioner was rejected on 21.03.2023, which was not challenged by the petitioner, however, he challenged the order dated 28.03.2023. Order dated 28.03.2023 has already been complied with, and the evidence of the witnesses PW10- Shiv Kumar Sinha, PW11- Har Prasad Pandey, PW12- Sanjay Kumar Yadav, PW13- Ravi Prakash Patel, PW14-Anadhu, and PW15- Ramnath have been recorded, and after closing of all the prosecution witnesses, statement of the accused under Section 313 of the CrPC has been recorded on 10.05.2023. Thereafter, petitioner had availed his remedy of Section 45 of the Evidence Act, and on 28.06.2023, he closed his right to lead the defence witnesses. He would also submit that during the entire proceeding, petitioner has not raised any objection, and duly cross-examined the witnesses, and even at the time of exhibiting the documents during recording of the evidence, no objection was raised by him, therefore, this petition has no merit, which is liable to be dismissed. 7. Heard learned counsel for the parties, and perused the material annexed with the petition, as well as record of the trial Court. 8. In the present CRMP, on 06.08.2024, it was directed to the concerned Investigating Officer to explain as to where the original copy of the suicidal note is, and from where he found its xerox copy. Crmp 1341 of 2023 7 9. In compliance of the order dated 06.08.2024, an affidavit was filed on 26.09.2024 by the Police Inspector Sanjay Kumar Yadav, the Investigation Officer, filed on 27.09.2024, stating therein that : “3. That, in compliance of the aforesaid orders of the Hon'ble Court's so far as the original copy of the suicide note is concerned, in this regard, it is humbly submitted that, the original copy of the said suicide note was handed over by the Deponent to one Sushil Malik, Station House Officer, Police Station City Kotwali, Kawardha, District Kabirdham (C.G.) on 15.09.2019, after registration of the SC & ST (Prevention of Atrocities) Act, 1989 in Crime No. 293/2019, registered at Police Station City Kotwali, Kawardha, District Korba (C.G.) against the applicant/Lokesh @ Lokeshwar Prasad Dewangan for the offence punishable under Sections 306 & 509-B of IPC. 4. That, it is respectfully submitted that during the investigation seizure has been made and the suicidal note has been found in the room of deceased. A copy of the relevant documents seizure memo, is being annexed herewith as ANNEXURE R/1. 5. That, it is further submitted that in investigation the procedure has been adopted and the concern investigation officer has hand over the entire case to superior officer that is office in-charge in concern Police Station because the matter finally investigate by the officer concern of Police Station A.J.K. In view of that investigation officer has been already been enclosed original document at the time of investigation and during this period since other procedure i.e. verification of the document also to be sent to the hand writing expert at Raipur and finally charge sheet has been filed with the help of public prosecutor before the Learned Special Judge atrocity. Crmp 1341 of 2023 8 6. That, it is respectfully submitted that due to said procedure and during the investigation officer concern have conducted the enquiry and this procedure it was acknowledge that they original part of suicidal note has not been found. Since the matter travel deferent investigation officer and officer concern therefore it was not clearly found that when the said documents has misplaced however after acknowledge the said mistake the authority has conducted a disciplinary enquiry and which is still pending therefore may kindly prayer the concern investigation officer has initiate a proper enquiry and found valid document i.e. suicidal not that due to lapses and travels the said document to the various authority the original has not kept on record.” 10. On 11.07.2025, when the clarification given by the Investigating Officer was not found satisfactory, the trial Court record was called in the present petition, and on 16.07.2025, learned State counsel was directed to file date wise detail report specifying the date, time, manner, and the circumstances under which the original suicidal note went missing. In compliance of order dated 16.07.2025, another affidavit of the Police Inspector Sanjay Kumar Yadav, Investigating Officer was filed on 23.07.2025, in which at para-3, date wise chart has been given, which reads as under: 3. That, in compliance of the aforesaid order of the Hon'ble Court's so far as the original copy of the suicide note is concerned, in this regard, a date- wise detailed report, specifying the date, time, manner and circumstances under which, the original suicide note went missing are, as under: - Crmp 1341 of 2023 9 Date EVENTS 09.09.2019 The original suicide note was deposited in the Chhattisgarh Police Headquarters, Raipur by the letter issued by the Superintendent of Police, District Kabirdham. 18.09.2019 The Chhattisgarh Police Headquarters, Raipur has returned the same to the concerned Superintendent of Police, District Kabirdham with instruction to scrutinize the same. 21.09.2019 The concerned Superintendent of Police, District Kabirdham has written a letter to the concerned Station House Officer, Police Station Kawardha, District Kabirdham with instruction to scrutinize the same. 23.09.2019 The concerned IO has gone for parade at Police Training Academy, Chandkhuri, District Raipur and he has handed over the Case Diary to the concerned SHO, PS Kawardha, District Kabirdham (C.G.). 11.10.2019 The concerned IO has returned from the parade and has taken over the Case Diary from the concerned SHO, PS Kawardha. 19.10.2019 The concerned IO has added the relevant Sections of the SC and ST (Prevention of Atrocities) Act, 1989 in the subject crime and has handed over the Case Diary to the concerned SHO, PS Kawardha for further investigation from the Gazetted Officer in the subject crime. Crmp 1341 of 2023 10 11. From perusal of these two affidavits, and clarification made by the the said Investigating Officer, it transpires that the Police have seized suicidal note from the room of the deceased, and it was sent for its handwriting expert. It further transpires from the memo dated 11.09.2023 sent by the Superintendent of Police, District-kabirdham to the Inspector General, Durg Range, which is annexed as Annexure R/1 along with the return filed by the State, that on 24.10.2019, the IO was transferred, and the case diary of the said crime number was in possession of the Police Constable. However, he denied in his statement that there was any note- book attached with the case diary. From the document annexed with the charge-sheet, it further transpires that the suicidal note was seized by the Police on 20.07.2018 from the spot, and seizure memo was also prepared in presence of the witnesses, and in the final report also at Sl No.1 of the property detail the suicidal note is mentioned. For the reasons best known to the Police authorities, as to where they kept the said note-book which contains the suicidal note of the deceased but the fact remains that the said note-book and suicidal note are presently missing. 12. Although there are judgments passed by the Hon’ble Supreme Court with respect to admissibility of xerox copy of the document under Section 65 of the Indian Evidence Act, 1872 that it is not admissible in evidence, unless the conditions laid down in Section 65 of the Act are fulfilled before admission of secondary evidence, however, in the present case, the existence of suicidal note could not be denied by the Crmp 1341 of 2023 11 petitioner/accused also. Had the said document been not seized, and if it is not in existence, the prosecution must not have mentioned it in the final report, and have not been prepared the seizure memo. 13. Further, it transpires from the record that the application under Section 63 of the Evidence act was filed by the prosecution on 16.03.2023, which was allowed on 28.03.2023. Thereafter, statements of the witnesses PW10 to PW15 have been recorded on various dates. PW10 has been re-examined on the point of secondary evidence on 24.04.2023, and he proved the suicidal note Ex.P42. At the time of marking its exhibit during the evidence no objection was raised by the petitioner/accused, and this witness was duly cross-examined by the petitioner, and thereafter, all other witnesses who have also deposed about the suicidal note have been properly cross-examined by the petitioner/accused at length. After completion of prosecution witnesses, the accused statement under Section 313 of the CrPC also recorded, and when the petitioner entered into his defence, he filed an application under Section 45 of the CrPC to get the handwriting expert over the said copy of the suicidal note Ex.P42 examined by handwriting expert Dr Sunanda Dhange. After considering the merits of the application, same was rejected by the learned trial Court vide order dated 21.06.2023, and immediately after filing of the application under Section 45 of the Evidence Act, present CRMP was filed by the petitioner on 13.06.2023. Crmp 1341 of 2023 12 14. True it is that in the case of J Yashoda (surpa) it has been held that the secondary evidence may be given in absence of the original evidence when proper explanation of missing the original is given. 15. Section 65 of the Evidence Act deals with the proof of the content of the document tendered in evidence. In order to enable a party to produce the secondary evidence, it is necessary for the party to prove existence, and execution of the original document. Section 65 permits secondary evidence to be given in case of existence, conditions and contents of the documents under the circumstances mentioned therein, and the conditions laid down in the said section must be fulfilled before the secondary evidence can be admitted. 16. From the judgments of J Yashoda (supra), U.Sree (supra), Ram Suresh Singh (supra), Jaiprakash Gupta (supra), Kranti Kumar (supra), Murlidhar Makhija (supra) and Vishnu Pratap Singh (supra), the xerox copy of the document is not admissible as secondary evidence under Section 65 of the Evidence Act but the position and facts here are different than that of the aforesaid case laws. 17. In the present case, existence of the said document could not be denied. Missing of the document has been explained by the Police authorities, and after admitting the secondary evidence, petitioner/ accused, without any objection cross-examined all the witnesses, and the said documents have been tendered in evidence, and marked it as Ex.P42. In his defence, he made an application for examination of said Crmp 1341 of 2023 13 suicidal note Ex,.P42 by handwriting expert Dr Sunanda Dhange, which was dismissed by the learned trial Court but the same has not been challenged. When during the examination of the witnesses, the document has been relied upon by the prosecution, and it has been marked without any objection, and the witnesses have been cross-examined at length by the petitioner/accused, it cannot be said that the suicidal note was not in existence, and it cannot be taken on record as secondary evidence. The impugned order dated 28.03.2023 has been challenged after a long gap of time, and during this period, the entire evidence of the witnesses has been examined and the case is at final hearing stage. Even if it has been held that the xerox copy of document Ex.P42 is not admissible as secondary evidence, the evidence laid by the prosecution and cross- examination made by the petitioner/accused, cannot be removed from their evidence. It is not that the petitioner had not been provided any proper opportunity of cross-examination of the witnesses. The only question is that whether the xerox copy of the document can be admitted as secondary evidence, or not. However, on the basis of said xerox copy of the document, evidences were led without any objection, and the petitioner/accused had cross-examined the witnesses at length. Even he filed an application for examination of said document by handwriting expert. 18. For the foregoing reasons, I do not find any scope for interference in the present petition, in the order dated 28.03.2023. Crmp 1341 of 2023 14 19. Accordingly, present petition stands dismissed. 20. Record of the trial Court be immediately sent back to the learned trial Court along with copy of this order. Sd/- (Ravindra Kumar Agrawal) JUDGE padma