Plea For Production Of Original Evidence Cannot Be Raised Once Secondary Evidence Is Admitted & Played In Trial Court: Karnataka HC

The Karnataka High Court has reiterated that once certified secondary evidence is admitted without objection and played in the trial court, it cannot be later contested that the original evidence must be produced.

In that context, the Bench of Justice HP Sandesh observed that, "even original is marked and certified copy i.e., secondary evidence also was marked and when the secondary evidence is produced before the Court and the same is not objected and same is played before the Trial Court, now cannot contend that original is not displayed and original has to be required to be played and an opportunity also given to the accused to substantiate his case. The production of secondary evidence is permitted with the certificate under Section 65B(4) of the Indian Evidence Act."

Counsel S Balakrishnan appeared for the petitioner.

In this revision petition, the petitioner sought to overturn the First Appellate Court's decision rejecting their application under Section 391(2) read with Section 207(V) of Cr.P.C. The application requested the respondent-complainant to produce the mobile handset, SIM card, and memory card/chip used to retrieve a particular CD.

The petitioner argued that discrepancies in the CD, such as the attire of the news anchor not matching the festival date and the unavailability of the mobile phone, warranted further examination. However, the respondent opposed the application, alleging it was a delay tactic, and questioned the authenticity of the petitioner's evidence.

The First Appellate Court also rejected the application, noting that the petitioner failed to raise these concerns earlier and that the respondent had already produced evidence, including a video clipping and a Certificate under Section 65B of the Evidence Act. The petitioner argued for the production of the mobile phone, citing the need to prevent tampering and ensure effective cross-examination. 

The High Court, after reviewing the trial proceedings, concluded that the petitioner had ample opportunity for cross-examination and that the matter had been delayed multiple times without sufficient justification.

It was further observed that, "in considering electronic evidence and the law is settled that the secondary evidence can be relied upon subject to production of certificate under Section 65B(4) of the Indian Evidence Act. In the case on hand, certificate is also produced under Section 65B(4) of the Indian Evidence Act as per Ex.P2 and now cannot contend that the same is marked and no opportunity was given by the Trial Court. The First Appellate Court also rightly rejected the application filed under Section 391(2) read with Section 207(V) of Cr.P.C., in passing detailed order that no foundation was made raising the said defence before the Trial Court."

In light of the same, the petition was dismissed.

Appearances:

Petitioner: Counsel S Balakrishnan

Cause Title: GM Kumar vs Kishan Hegde

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