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Understanding Primary Evidence under Indian Evidence Law

Introduction

The Indian Evidence Act, 1872 lays down the provisions relating to evidence given in any civil or criminal proceedings in any court. Evidence may be proof which indicates whether a belief or a proposition is true or valid.

Section 3 of the Indian Evidence Act, 1872 defines evidence. It states that an “evidence” means and includes:

  1. All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
  2. 2. All documents produced for the inspection of the Court; such documents are called documentary evidence.

It must be noted that evidence must be produced before the Court in any suit or proceeding to prove the existence or non-existence of a fact in issue or any other fact relevant to such suit or proceeding only.

Primary Evidence

Section 62 of the Indian Evidence Act, 1872 defines Primary Evidence. Primary evidence means the document itself produced for the inspection before the Court. For the purpose of the definition, the section lays down two explanations which are as follows:

Explanation 1 – Where a document is executed in several parts, then each part is deemed to be the primary evidence of the document. Furthermore, where a document is executed in counterpart and each of such counterparts is being executed by one or more parties, then in such case each counterpart is primary evidence as against the parties executing it.

Explanation 2 – Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest. However, where they are all copies of a common original, they are not primary evidence of the contents of the original.

In the case of Prithi Chand v. State of Himachal Pradesh, the Apex Court laid down the rule regarding the admissibility of the carbon copy of a document. The Court held that since the carbon copy of the medical certificate was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act. Hence, a carbon copy prepared under one uniform process is admissible as primary evidence under Section 62 of the Evidence Act.

In the case of Theresa v. Special Court under A.P. Land, the Court laid down that a printed copy obtained from an original document is not primary evidence under Section 62 of the Indian Evidence Act, 1872, as Explanation 2 clearly lays down that where a number of documents are all copied an original, they are not primary evidence. Explanation 2 can be interpreted to stipulate that when all the documents are made at the same time by one uniform process, such as printing, cyclostyle or lithography, as they are not mere copies in the strict legal sense of the term but are counterpart originals, then each document can be regarded as primary evidence of the contents of the others.

When is Primary Evidence Given?

Evidence to prove any document must be given in its best form. Section 64 of the Indian Evidence Act, 1872 provides for the proof of documents by primary evidence. It states that documents produced in any suit or proceeding before any Court of law must be proved by primary evidence.

In the case of Sheo Nath Prasad vs. Sarjoo Nonia and Anr., it was laid down that when a plaintiff alleges a loan and files with his plaint a document which he alleges to be a promissory note and it is found to be unstamped or insufficiently stamped, there can be no proof of the contents of the document, including the fact whether it is signed by any person or not, or if signed, the identity of the person signing it, or of the terms of the transaction recorded in the document. In such a case, the document is not admissible as primary evidence under Section 64 of the Indian Evidence Act.

Exceptions when Secondary Evidence may be Given

While Section 64 mandates that proof of documents must be given in the form of primary evidence, certain exceptions are there when secondary evidence may be produced.

Section 65 lays down the cases in which secondary evidence may be given of the existence, condition, or contents of a document-

  1. When the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved, or if it is the possession of any person out of reach of, or not subject to the process of the Court, or of any person legally bound to produce it and even after given notice as mentioned under Section 66 does not produce it. In such a case, any secondary evidence of the contents of the document is admissible.
  2. When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by a representative in the interest of such person. In such a case, written admission is admissible.
  3. When the original has been destroyed or lost, or when the party offering evidence of its contents cannot produce it in a reasonable time given that it is not due to his own fault or neglect, then any secondary evidence is admissible.
  4. When the original is of such a nature as not to be easily moveable, any secondary evidence of the contents of the document is admissible.
  5. When the original is a public document within the meaning of Section 74, the certified copy only, and no other kind of secondary evidence is admissible.
  6. When the original is a document of such nature that is a certified copy of the same is permissible under this Act to be given as evidence, or by any other law in force in British India, then the secondary evidence is admissible.
  7. When the original consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In such a case, evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

In the case of Rakesh Mohindra v. Anita Beri, the Apex Court has considered the scope of Section 63 and Section 65 of the Indian Evidence Act in case of admissibility of secondary evidence. It laid down that the pre-conditions for leading secondary evidence are that such original documents cannot be produced by the party relying upon such documents in spite of best efforts and is unable to produce the same due to reasons beyond their control. The party seeking to produce secondary evidence must establish for the non-production of primary evidence.

Conclusion

Primary evidence is known as the best evidence, which is the best available proof of the existence of an object because it is an actual item. It differs from secondary evidence, which is a copy or substitute of the original. If the primary evidence is available, then the party must produce it before the court as proof. However, if it is not available due to loss or destruction, then secondary evidence may be produced, provided that the reason for its unavailability is sufficiently established.

This Article is Written by Arushi Gupta, 5th Year BALLB Student from DES Law College, Pune University.

Also Read – Under What Circumstances Secondary Evidence Is Admissible?

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