STATE OF GUJARATversusSANJAY CHINTAMANI MISHRA

     R/CR.RA/75/2015                             JUDGMENT DATED: 13/03/2026




          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


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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
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: ANKIT YOGESHBHAI JANSARI(HCW0109), ENGLISH STENOGRAPHER GRADE I, at High Court of Gujarat on 16/03/2026 17:46:35




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