JUDGMENT
I.P. Singh, J.
1. This is an application under Section 482 of the Code of Criminal procedure, 1973(in short the Code). It is directed against the order dated 3.8.2005 passed by the learned Fast Track Court, Additional Sessions, IV, Nawadah in S.T. No. 77 of 2003 by which the court had allowed the prosecution to prove the photo copy of the injury report as secondary evidence.
2. From the facts it would appear that a case against the petitioner and four others was instituted under various sections of the Indian penal Code and also under Section 27 of the Arms Act. The charge sheet was submitted against them. The cognizance of the offence was taken and the case was committed to the court of session for trial. In the course of the trial the photo copy of the injury report which was available in the case diary was sought to be proved by the prosecution. This was opposed by the present petitioner. The original injury report was called for by an order dated 17.2.2005. It, however, appear a that in compliance of this order no notice was sent to the Investigating Officer for producing the original injury report. On his behalf, however, a letter was received from the Superintendent of Police, Nawadah stating therein that the original injury report was not available in the records of the case at the police station.
The prosecution wanted to prove the photo copy of the injury report. The learned court below by the impugned order has allowed this petition and against this order the present appl cation has been filed.
3. On behalf of the petitioner it has been submitted that under the facts and circumstances of this case the photo copy of the injury report can not be admitted into evidence. It has also been submitted that the prosecution can not be allowed lead secondary evidence with respect to the said injury report.
4. The parties have been heard at length on the various submissions made on their behalf with respect to the question whether or not the photo copy of the injury report can be treated to be a secondary evidence and admitted as such under the facts and circumstances of t his case.
5. Learned court below by the impugned order has allowed this prayer of the prosecution to admit the photo copy of the injury report in evidence. This has been opposed by the learned Counsel on behalf of the petitioner. In this connection my attention has been drawn to the case of Ashok Dulichand v. Madahavlal Dube and Anr. . In this decision the Hon’ble Supreme Court has held that in a case of photo copy of a document, before it is admitted in evidence it has to be explained as to what were the circumstances under which photo copy wag prepared and who was in possession of the original document at the time when its photo copy was taken and this should be above suspicion. In the present case as will appear from the impugned order dated 3.8.2005 it appears that the original injury report was not attached with the case diary rather only its photo copy was attached to it. This is a great circumstance against the case of the present petitioner. As held by the Hon’ble Supreme Court in the above mentioned case before a photo copy of a document is admitted into evidence it has to be explained as to what were the circumstances under which the photo copy was prepared and who was in possession of the original document at the time when i ts photo copy was taken and this must be above suspicion. In the present case as will appear from the impugned order as also the facts and circumstances of this case that the prosecution has not been able to specify when the photo copy of the original injury report was prepared art under what circumstances. It has also not been stated as to who was in possession of the original document at the time when its photo copy was prepared. Under this circumstance I think that the learned court below by the impugned order has wrongly decided to admit the photo copy of the injury report. It may stated here that it is well settled that the photo copy of a document is admissible as secondary evidence if it is proved to be genuine. The genuineness is to be proved either by examining the photographer or some other evidence as has been held in the case of Subarna Barik v. The State of Orissa and Ors. .
6. However, under the facts and circumstances of this case it is clear that the photo copy of the injury report is not admissible in evidence as has been held by the learned court below. The impugned order is directly in-conflict with the decision of the Hon’ble Supreme Court in the case of Ashok Duli Chand (supra).
7. In this result this application is allowed and the impugned order dated 3.6.2005 is hereby quashed.