This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law University, Sonipat. This article explains the concept and types of evidence as mentioned under the Indian Evidence Act,1872 with special emphasis on secondary evidence and its elements. It also outlines the difference between primary and secondary evidence and the circumstances in which secondary evidence is used in the place of primary evidence. 

This article has been published by Sneha Mahawar.

Introduction

Evidence forms an integral part of the justice delivery system. It is with the help of the evidence that the alleged facts are proved in a court of law and the right decision is taken. Evidence has been dealt with in detail in the Indian Evidence Act,1872. One of the important forms of evidence mentioned in the Act is secondary evidence which plays a significant role in proving the alleged facts in cases wherein the original document, i.e. the primary evidence is not available due to exceptional circumstances. The Act contains elaborate elements of secondary evidence that outline what forms of documents can fall in this category. 

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What is evidence 

The word ‘evidence’ has been derived from the Latin expression ‘evidens evidere’ which translates to “to show clearly; to make plain, certain or to prove.” Whenever a case is presented before the court, it has to go through a lot of facts and information given by the contesting parties. A court of law is expected to examine the truth of those facts and deliver justice. This is where the role of ‘evidence’ comes into the picture. Evidence is that support provided to the facts presented that prove the genuineness of those facts. It is all about giving proof of something before the court. 

As per Section 3 of the Indian Evidence Act,1872, evidence means and includes:

  1. Oral evidence- It includes all the statements that are allowed or need to be presented before the court by the witnesses in relation to the matters of fact under inquiry. 
  2. Documentary evidence- This includes such documents, including any electronic records that are presented before the court for examination. 

Oral evidence 

Oral evidence basically implies words of mouth that are credible enough to be adequate to prove a particular fact without the support of any documentary evidence. According to Section 60 of the Indian Evidence Act, 1872, oral evidence must have the following requisites:

  1. It must be personally seen or heard by the witness. 
  2. If it is gathered from the perception of any other sense, then it must be proved by the witness who claims to have perceived it from that sense.
  3. If it refers to an opinion or the grounds on which the opinion is held, then it must be given by the person holding that opinion or the grounds of that opinion. 
  4. If it refers to the existence of material other than a document, then the court can also order the presentation of that material for inspection. 

Though hearsay evidence is not acceptable in a court of law, Section 32 of the Indian Evidence Act, which talks about the cases in which a statement of relevant fact by a person who is dead or cannot be found, etc. is relevant, and Section 33 of the same Act which covers relevancy of certain evidence for proving, in the truth of facts that are presented, form the exceptions of this rule. 

Documentary evidence 

Whenever any evidence is presented to prove certain facts that contain the matter expressed or described upon any material by way of letters, marks, figures, or by more than one such method by which such expression can be made materially, it is called documentary evidence. Thus, it refers to evidence in physical or tangible form. 

Now as per Section 61 of the Indian Evidence Act, documentary evidence could either be primary or secondary. 

Primary and secondary evidence 

According to Section 3 of the Indian Evidence Act, a document refers to “any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.” Now, this may include printed, lithographed, or photographed words, a map or plan, a caricature, or even an inscription on a metal plate or stone. 

Section 61 states that the contents of a document can be proved in two ways. They are as follows:

  1. Primary evidence- It is covered by Section 62 of the Evidence Act and is considered the highest class of evidence. As per Section 62, when the document itself is produced for the inspection of the court, it is called the primary evidence. If the document is in parts, then each part forms the primary evidence. The copies of a common original do not form the part of primary evidence, where they are all made by one uniform process. It is majorly produced before secondary evidence. In fact, secondary evidence is presented in the absence of primary evidence. It is the best evidence that absolutely establishes the proof of the fact alleged. 
  2. Secondary evidence- It is generally presented in the absence of primary evidence and is not the best form of evidence. Secondary evidence is covered under Section 63 of the Evidence Act.

Section 63 of the Indian Evidence Act, 1872

According to Section 63, secondary evidence means and includes the following:

  1. Certified copies as per the provisions mentioned hereinafter;
  2. Copies that are produced from the original by mechanical processes which ensure the accuracy of the copy, and copies compared with such copies;
  3. Copies produced from or compared with the original;
  4. Counterparts of documents as against the parties who had not executed them;
  5. Oral accounts of the contents of a document given by the person who has himself seen the document. 

Illustrations for Section 63

  1. A photograph of the original document- If it is proved that the thing photographed was original, the photograph is considered secondary evidence of its contents, even though the two may not have been compared.
  2. Copy of letter made by the copying machine- If it proved that the copy of the letter was made from the original with the help of a copying machine, then the copy as compared with the original letter shall be admissible as secondary evidence of its contents.
  3. A copy transcribed from a copy- A copy transcribed from the copy is admissible as secondary evidence, only when it is afterwards compared with the original. 
  4. Oral account- Oral account of the copy compared with the original and oral account of a photograph or machine copy of the original are not considered to be secondary evidence. 

Comments on Section 63 

  1. Sobha Rani v. Ravikumar (1999) – In this case, the admissibility application was moved to seek permission to lead secondary evidence on the grounds of loss of the original document. The Court gave its permission. The presence of the document was proved from the facts. The Punjab and Haryana High Court held that allowing secondary evidence was not illegal. 
  2. K.S. Mohan v. Sandhya Mohan (1993) – In this case, the honorable Madras High Court held that a tape-recorded statement was admissible as secondary evidence. 
  3. K. Shivalingaiah v. B.V. Chandrashekara Gowda (1993) – It was observed in this case that certified copies of the money lender’s licenses are admissible as evidence. 

Elements of secondary evidence 

Certified copies were given under the provisions contained therein

Section 76 of the Evidence Act describes the certified copies. It lays down that every public officer having the custody of any public document, in relation to which any person has a right to inspect, shall give a copy of that document on demand and on payment of the requisite fee. At the feet of such copy, a certificate must be affixed declaring that it is a true copy of the said copy. The date of the copy, the name and official title of the officer who has subscribed to such copy, and the seal of the officer must also be affixed on that copy.

In the case of Kalyan Singh v. Smt. Chhoti and Ors. (1989), it was observed that the genuineness of certified copies that are referred to in Section 63(1) is presumed under Section 79 of the Evidence Act. But this is only for the certified copies. For other copies, proper evidence must be provided to prove it. Thus, the certified copy of a registered sale deed shall be admissible as secondary evidence but not any ordinary copy. 

Copies that are produced from the original by mechanical process

For this particular provision, elaborate guidelines were issued in the case of Surinder Kaur v. Mehal Singh (2013). It was observed:

  1. A photocopy of the original document can be allowed to be presented as secondary evidence only in the absence of the original document. 
  2. When a photostat copy is presented as evidence, it is on the party producing it to prove that the original document existed and is lost or is in possession of the opposite party who failed to produce it. Mere assertion is not sufficient to prove it. 
  3. After the photocopy is produced in the court as evidence, the opposite party must raise its objections regarding the non-existence of such circumstances or foundational facts at the earliest. 
  4. When any such objections are raised, the authenticity of the copy must be determined as every copy produced from the mechanical process might not be accurate. 
  5. Mere production of copy as the evidence does not amount to its proof. Its correctness has to be evaluated and proved independently. It has to be shown that it was made from the original document at a specific time and place. 
  6. In instances where the photostat copy is itself suspicious, it is not to be relied upon, unless the court is satisfied that it is genuine and accurate. 
  7. The genuineness of the copy is to be proved on oath by the person who made the copy or who can vouch for its accuracy, to the satisfaction of the court. 

Copies produced from or compared with the original

This provision is further elaborated by the illustration attached with Section 63. It states that a copy transcribed from a copy is admissible as secondary evidence only when compared with the original. If the copy is not compared with the original, it is not considered to be secondary evidence, even though the copy from which it was transcribed was compared with the original. 

Counterparts of documents as against the parties who had not executed them

This provision states that the counterparts of documents are admissible as secondary evidence against the person who had not executed it. 

Oral accounts of the contents of a document given by the person who has himself seen the document

Oral accounts of a person about the content of a document must be closely examined. Not examining the informant or not presenting the report of that person is fatal and such a person’s report cannot be relied upon in such a case. 

Difference between primary and secondary evidence 

Primary evidence Secondary evidence 
It is defined under Section 62 of the Indian Evidence Act. It is defined under Section 63 of the Indian Evidence Act. 
It consists of the original document that is presented in the court for inspection. It consists of documents other than the original like the copy or others, as enlisted in Section 63. 
It is considered the best form of evidence. It is not the best form of evidence and is usually presented in exceptional circumstances such as, the absence of primary evidence.
Presenting primary evidence is the general rule to prove a particular fact. Presenting secondary evidence is the exception to the general rule. 
No notice is required to be served before the presentation of primary evidence.A notice must be served before presenting secondary evidence. 
It is the main source of evidence.It is the alternate source of evidence. 

Circumstances in which secondary evidence is admissible in place of primary evidence 

Section 65 of the Indian Evidence Act enlists the circumstances under which secondary evidence is admissible in place of primary evidence. They are as follows:

  1. In the instance where the original document is shown or appears to be in the possession of or power of- 
  1. The person against whom the document is sought to be proved; or 
  2. The person who is out of reach or not subject to the process of the court; and 
  3. The person who is legally bound to produce it but has not done so despite a notice being served under Section 66. 

B.  In the case where the contents, existence, or contents of the original document have already been proved to be admitted in writing by the person against whom it is proved or his representative interest.

For example, in the case of Sharda Talkies (Firm) and Anr. v. Smt. Madhulata Vyas and Ors. (1995), it was held that in a case where the defendant himself had admitted to having made the payment under the cheque, the absence of the cheque as primary evidence can be dispensed with and this would not vitiate the suit. 

C. In a situation, wherein the original has been lost or destroyed, or the party who is presenting the evidence cannot present it in reasonable time due to any reason other than his default or neglect; 

D. In case where the original document is not of such nature that it is not movable so as to be presented before the court for inspection; 

E. In an instance where the original document is a public document within the meaning of Section 74; 

F. In a situation where the original is a certified copy that is permitted by this Act or any other law in force in India to be given in evidence; 

G. In the case where the original consists of numerous accounts or documents which cannot be conveniently all examined by the court, or the fact which is to be proved is the general result of the whole collection. 

In cases ‘A’, ‘C’, and ‘D’, secondary evidence of the contents of the document is admissible. In the case of ‘B’, only the written evidence is admissible. In the case of ‘E’ or ‘F’, only the certified copy of the document shall be admissible as secondary evidence. Lastly, in the case of ‘G’, evidence to be presented as the general result of the documents collectively must be given by a person who has examined them and is skilled in the examination of such documents. 

Circumstances when notice is not required to render secondary evidence 

As per Section 66, in the following circumstances, there is no need to render a notice for the presentation of secondary evidence:

  1. When the document to be presented itself amounts to notice;
  2. When it is evident from the case that the adverse party should itself realize that he will be required to create it;
  3. When it is proved that the opposite party has gotten the ownership of the first by fraud or force;
  4. When the adverse party or his representative has already submitted the original in the court;
  5. When the adverse party or the representative has accepted the loss of the document; and
  6. When the individual having the possession of the report is far away or is covered under the jurisdiction of the court. 

Examples of secondary evidence 

The following are some common examples of secondary evidence presented in the courts:

  1. Newspaper reports- Newspaper reports have been admitted to be hearsay evidence. Hence, they cannot be relied upon unless proved by concrete proof. Supporting evidence must be presented to prove the facts alleged in newspaper reports. 
  2. Judgments- Judgments can be presented as secondary evidence but their use is limited. Many times, the judgment not only contains the ratio decidendi but also a lot of ancillary information based on documents submitted by parties that can be relied upon to prove certain facts stated in a particular case. 
  3. Photographs- They are admissible as secondary evidence in the court of law, but only on oath either by the person who took the photograph or the one who can testify to its accuracy. Even X-ray photographs are admissible to prove the extent of injury caused. 
  4. Birth certificates- In instances where the original birth certificate is lost or cannot be presented, then any similar certificate which is issued by the school principal is admissible as secondary evidence. Voters’ lists can also be presented in a similar way. 

Conclusion 

Secondary evidence is not considered to be the best form of evidence. It is usually presented in exceptional circumstances where primary evidence is not available. However, this cannot belittle its significance in proving certain facts. There are a number of instances wherein the presence of primary evidence is not possible. In such circumstances, secondary evidence plays a crucial role in proving the facts before a court of law and helps in the delivery of justice. The Indian Evidence Act covers the concept of secondary evidence elaborately, including its meaning, what can be included under it, and when it can be presented in place of primary evidence. 

References

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