[Cites 10, Cited by 0]
Gujarat High Court
State Of Gujarat vs Sanjay Chintanbhai Mishra on 13 March, 2026
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R/CR.RA/75/2015 JUDGMENT DATED: 13/03/2026
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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
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SANJAY CHINTANBHAI MISHRA
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Appearance:
MR ROHAN RAVAL, APP for the Applicant(s) No. 1
MR ZUBIN F BHARDA(159) for the Respondent(s) No. 1
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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
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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
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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 -
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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
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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.
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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
