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, te 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.

What is evidence

The word 'evidence' has been derived from the Latin expression evidens
evidere which translates to to show cleany, 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 Impiles 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
eviderice 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. Coples that are produced from the original by mechanical processes which
ensure the accuracy of the copy, and copies compared with such coples;

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. Mohon 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. Shivalingalah 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. (1969), 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

It is defined under Section 62 of the Indian Evidence Act

It consists of the original document that is presented in the court for

inspection.

It is considered the best form of evidence.

Presenting primary evidence is the general rule to prove a particular fact.

No notice is required to be served before the presentation of primary

evidence.

It is the main source of evidence.

Secondary evidence

It is defined under Section 63 of the Indian Evidence Act.

It consists of documents other than the original like the copy or others, as
enlisted in Section 63.

It is not the best form of evidence and is usually presented in exceptional

circumstances such as, the absence of primary evidence.

Presenting secondary evidence is the exception to the general rule.

A notice must be served before presenting secondary 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 Shards Talkies (Firm) and Anr. v Smt. Madhulata
Vyan 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.