IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 75 of 2015 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR ============================================ Approved for Reporting Yes No ============================================ STATE OF GUJARAT Versus SANJAY CHINTANBHAI MISHRA ============================================ Appearance: MR ROHAN RAVAL, APP for the Applicant(s) No. 1 MR ZUBIN F BHARDA(159) for the Respondent(s) No. 1 ============================================ CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 13/03/2026 ORAL JUDGMENT 1) By way of present criminal revision application the applicant – State of Gujarat has assailed the order dated 25.11.2014, passed below Exhibit 71 in Sessions Case No.26 of 2011, by the learned Principal Sessions Judge, Navsari, (who shall hereinafter be referred to as “learned Sessions Judge”), whereby, the learned Sessions Judge has been pleased to pass the order exhibiting the secondary evidence produced at Mark – 8/12 (copy of Dying Declaration) and exhibited only the signature of p. 2 the witness – Pravinkumar Nagardas Parmar, Executive Magistrate. 2) Heard learned APP Mr. Rohan Raval for the applicant – State and learned Advocate Mr. Zubin F. Bharda, for the respondent – original accused. 3) The brief facts of the case are that one Session Case No.26 of 2011 was registered before the Principal Sessions Judge, Navsari, for the offences punishable under Sections 302, 306, 323, 498(A) of the Indian Penal Code. During the treatment the deceased had passed away and Section 302 of the IPC was subsequently added. Therefore, the Dying Declaration becomes an important document and hence the District Public Prosecutor has produced list of documentary evidence at Exhibit 8 and primary evidences were produced out of which Mark 8/12 is the copy of Dying Declaration as the copy of original Dying Declaration is not traceable in the Office of Executive Magistrate for the reason that the Office was demolished. Therefore, an application at Exhibit 71 was submitted to consider the copy of Dying Declaration as secondary evidence as the said copy was obtained from the Police Station where a carbon copy was given by the Executive Magistrate at the relevant time. The Executive Magistrate has been examined at Exhibit 49 and as per his deposition, there should not have any objection to consider the p. 3 same as secondary evidence. However, the learned Sessions Judge has passed an order to consider Mark 8/12 copy of Dying Declaration as secondary evidence only for the purpose of signature and to exhibit to that extent. 4) It is a sorry state of affairs that, in connection with the production of secondary evidence in the absence of primary evidence the learned APP appeared before the learned Sessions Court has lost sight and ignored the relevant provisions of the Indian Evidence Act and due to such ignorance on the part of prosecution agency present revision application has been filed and the sessions trial remained pending for 15 years. Pursuant to the order dated 24.02.2015, though the evidence has already been recorded but as interim relief granted qua pronouncement of final judgment in Sessions Case No.26 of 2011, and which extended from time to time till date approximately for more than 11 years in total the Sessions Case has been prolonged for the last 15 years though other alternate remedies or recourse were available before the learned Sessions Judge itself to cure the lapse or any defect or error crept in on the part of the prosecution. Even, though the learned Sessions Judge has also afforded ample opportunities. 5) In the present revision application the challenge is given in connection of evidence of Prosecution Witness No.11 - p. 4 Pravinkumar Nagardas Parmar, Executive Magistrate examined at Exhibit 49, on 27.05.2010 the Dying Declaration came to be recorded by him but original copy of the same was not available on record hence secondary document came to be produced, though ample opportunity was afforded to produce original Dying Declaration but the prosecution agency failed to produce on record or trace out the original Dying Declaration. 6) It is needless to say that Chapter - (V) of the Indian Evidence Act provides the procedure to prove the document and as per Section 61 of the IEA contents of the document is required to be proved either by primary or secondary evidence. If primary evidence is not available under Section 62 of the IEA then following provision of Section 63 of the IEA secondary evidence is required to be proved read with Section 65 of the IEA. But the prosecution agency has failed to follow the said provision and to file appropriate proceeding or to undertake appropriate steps to prove the case by leading secondary evidence and also failed to prove the contents of such document. As mere production is itself not proof of content and the prosecution has to prove the contents of such document, as straightaway production of xerox or photo copy of the document in absence of original document is not admissible in the evidence. In this regard reference is p. 5 required to be drawn from the judgment of the Hon’ble Supreme Court in the case of Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh and Anr., reported in 2009 (6) SCC 681. 7) Further perusing the evidence of PW-11 it reveals that said witness has not uttered about the contents of the Dying Declaration, though application came to be filed at Exhibit 71 by the learned APP for exhibiting the document produced at Mark 8/12 i.e. copy of Dying Declaration. The learned Sessions Judge has observed that, in light of evidence of prosecution witness (at Exhibit 49), the witness has only identified his signature and signature of the victim only but he failed to prove or reiterate any content or to give any evidence regards to contents of Dying Declaration. Hence, the learned Sessions Judge has rightly exhibited the said secondary evidence qua only signature in absence of any proof of contents in document up to that extent the learned Sessions Judge has not committed any error and does not call for any interference. Even, such order does not cause prejudice to prosecution in any manner. 8) In view of above, the present Criminal Revision Application is dismissed being devoid of any merits. Ad-interim relief granted earlier stands vacated forthwith. p. 6 9) The learned Principal Sessions Judge, Navsari, is directed to pronounce the judgment on its own merits, within a period of 30 days, from the receipt of the order, since the case is of the year 2011. 10) Record and proceedings, if any, be sent back to the concerned Court forthwith. (HASMUKH D. SUTHAR,J) ANKIT JANSARI