The secondary evidence is the evidence that has been re-exposed from the original document or inserted into the original. Section 63 of the Indian Evidence Act, 1872 outlines the secondary evidence. Secondary evidence without original documents such as certified copies, Photocopy etc. Secondary evidence admissible in the absences of the primary evidence.
The secondary evidence is another source. Section 63 of the Indian Evidence Act, 1872 outlines the second evidence. Secondary evidence is different without original documents such as certified copies, Photocopy, document partners etc.
The Meaning of the Secondary Evidence1:
Section 63 of the Indian Evidence Act, 1872 deals with the secondary evidence, and the secondary evidence includes –
1. Certified copies provided under provision hereof;
2. Copies made from the original by mechanical procedures that verify the accuracy of copies and copies compared to those copies;
3. Copies made from or compared to original;
4. Literature ratings as opposed to organizations that did not;
5. verbal accounts of the content of a document provided by an eyewitness.
When secondary evidence is admissible?
Section 65 of the Evidence Act provides for seven cases where basic evidence is admissible. This section relates to exceptions to the rule set out in Section 64. The principle underlying that clause is that when the original document is not available, destroyed, retained by the opposing party, or controlled by a third party who does not produce it after recognition, then the second evidence must agree.
The request for production of secondary evidence should provide all the relevant information and must be supported with the correct affidavit. It should be noted that secondary evidence of document content may not be accepted without the original production of the original in such a way that it is imported in one or more of the cases provided in the case. Such a document must be certified by someone familiar with the author’s handwriting.
Section 65 of the Indian Evidence Act, 1872 specifically outlines the circumstances under which basic evidence may be admissible.
Conditions in which secondary evidence may be given existence:
(a) Where the original is displayed or is deemed to be the owner or power of the person to whom the document is sought, or any other person who cannot access or is subject to the proceedings of the Court, or any other person legally bound to produce, and where, after the notice referred to in Section 66, that person is a manufacturer;
(b) Where available, the original form or content has been proven to be in writing accepted by the person to whom it was verified or by its representative in good faith;
(c) Where the original is destroyed or lost, or where the party giving evidence of its contents cannot, for any other reason not arising out of automaticity or negligence, produce in due course;
(d) Where the real is so natural that it can be easily moved;
(e) Where the primitive is a public document within Section 74;
(f) Where the primary is a document in which a certified copy is permitted by this law, or by any other law in charge of India to be given proof;
(g) Where the original contains many accounts or other documents that cannot be easily checked in court, and the proven fact is the general result of all collections.
In cases (a), (c) and (d), any secondary evidence of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other type of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is competent in the examination of such documents.
The pre-conditions for the second leading evidence is that such original documents could not be produced by the party relied on such documents despite the best efforts, of failing to produce the same beyond their means. The party seeking to present the secondary evidence must establish the non-production of the primary evidence. Unless, of course, it is established that the original document is lost or destroyed or deliberately held by the party in respect of the document it intended to use, the second evidence in respect of that document is not accepted.
Pravin vs Ghanshyam 3
Facts of the case: The appellant filed his application on 12.07.2017 under section 65 of the Evidence Act which gets rejected. The applicant has filed a suit for a declaration and permanent injunction relating to the land. L. T. Sitaram holds the ground expiring on 29.08.2013. According to Petitioner, he made a will on 29.05.2003 in favour of LTE. Sitaram. According to the will, after Sitaram’s death, the petitioner becomes the owner of the land and agreed to sell his land in Parasram and Prakash. The agreement was made on 04.09.2013. The claimant is still in the land offering and the respondent is trying to destroy the land of the applicant.
Judgment of the case:
The court has ordered to prove the application when the applicant made the transcript by making a copy of the document and presented to the court of law. Photocopy of the court of record has denied the petitioner’s request.
In the case of J Yashoda v. K Shobha Rani4, it was held that where there was no possibility of documents being compared with originals as the originals were with another person, the documents could not be accepted as secondary evidence.
In the case of Kalyan Singh v. Smt. Chhoti5 and others it was held by the Hon’ble Apex Court that correctness of certified copies referred to in clause (1) is considered under section 79 of the Indian Evidence Act, 1872, but that in other copies must be proved by proper evidence. A certified copy of the registered diamond can be produced as secondary proof if there is no original. However, in the present case, the copy presented by the party is not a certified copy. Just a regular copy. There is no evidence as to the content of the original sales title. The copy presented by the party cannot therefore be regarded as secondary evidence. The appellate court has the right and duty to produce such evidence.
In the case of K. Shivalingaiah v. B.V. Chandrashekara Gowda 6, held that certified copies of mortgage loans are admissible as evidence.
This Section is therefore readable and the bases must be laid in order to accept the second evidence. Unless the case falls within one of the two categories of Section 65 evidence, it is unacceptable. Where the first evidence is not available then only the second admissible evidence and the second proof may be given where the actual power or authority of the opposing party or person is unavailable, or under process by any court bound for reproduction and where that person is not produced after giving notice.
Where the nature of the existence or the original content has been proved to have been accepted in writing by the person to whom it was testified or by his or her attorneys in interest the basic evidence is allowed.
1 Indian Evidence Act, 1872
2 The Indian Evidence Act, 1872, The law of evidence batuk lal.
3 M.P.NO.1144/2017(Madhya Pradesh High court,23/03/2018)
4 AIR 2007 SC 1721
5 AIR 1990 SC 369
6 1992 KarLJ 536
This article is authored by Tanushri Sharma, Third-Year, B.A. LL.B. student at Vivekananda Institute of Professional Studies (VIPS IP University)
Also Read – Recording Of Evidence From Person Unable To Give Verbal Statements