In any plea in the court, evidences play a huge role in deciphering the truth of the statement of the parties and coming to a decision. For the purpose of convenience, Evidences are differentiated in two broad categories of Primary and Secondary Evidence. Primary evidences are the original ones, they are more effective and it is always suggested to present Primary Evidence. However, situations may arise where primary evidence is not available. In that case, Law provides specific guidelines where Secondary Evidence can be accepted. To give an example, say the original copy of a document duly signed will be considered a primary Evidence while photocopy, Xerox or photo of the same document will be called Secondary Evidence.
WHAT IS SECONDARY EVIDENCE?
“Secondary evidence means and includes—
(1) Certified copies given under the provisions hereinafter contained.
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.”
The Expression “means and includes” is an exhaustive one. Therefore, any evidence that is to be submitted must come within the five clauses mentioned above. In a case where a draft for the award was presented as Secondary Evidence, the Court refused to allow it since it doesn’t come under the purview of any of the five clauses.
For the admissibility of certified copies under clause(1), it must satisfy the definition given under Sec 76. It reads as “Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees there for, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.”
Sec 79 further provides that documents duly signed and owned by public officials are deemed to be genuine. Thus, when Sec 76 is read with Sec 79, Certified copies under clause(1) will not be re-verified while documents presented under other four clauses will have to be verified before being admitted.
WHEN IS SECONDARY EVIDENCE ADMISSIBLE?
As discussed above, to present secondary evidence, first and foremost the party will have to justify the absence of the Primary Evidence. The sufficient reason for non-production of original document must be shown. In a case where Court found that no effort has been made by the plaintiff to search for original document, Secondary Evidence was not allowed. Thus, where the plaintiff was supposed to own the original document, its loss must also be substantiated with. In Anand Kumar Singhal v. BanarsiLall, the plaintiff claimed that he misplaced the original receipt and presented a Xerox, Court didn’t allow the Xerox copy.In the case of Kaliya v. State of Madhya Pradesh, the Court opined that the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced.
Further, the party presenting a copy of the document must beyond reasonable doubt show that the original document existed and the one presented is a genuine copy of it. Where a document which has been brought on record is neither a photocopy nor the true copy of the original and, there is no material on record to show that the document has been described as to be true copy, such a document does not come within the ambit of secondary evidence under Section 63 of the Evidence Act.
The burden is on the plaintiff to show the correlation and if the Court finds that it is improbable in a particular case to verify the veracity of the document, such document won’t be considered. Secondary evidence has to correspond by the contents of the original piece of evidence and care should be taken by the Court to ascertain that sufficient material is produced by the party to substantiate his claim about the truthfulness of such secondary evidence before such evidence being admitted in evidence as the secondary.
Another important case regarding this concept is Ashok Dulichand v. Madahavlal Dube. The plaintiff presented a photocopy saying that respondent no.1 has the original copy. Respondent denied the claim and plaintiff did not sufficiently describe as to when and why the Photostat was prepared. Thus, when a photocopy of a photograph is presented, it is imperative to describe the location and circumstances of the original document and why is the plaintiff in possession of the photocopy, failing which the Court won’t accept such a claim.
Apart from these indispensable conditions, Sec 65 of the Indian Evidence Act lays down few other circumstances where secondary evidence is allowed:
“(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, 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 when, after the notice mentioned in section 66, such person does not produce it;
(b) 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 his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence;
(g) When the originals consist 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”.
With regards to clause (b), it is further clarified that if the defendant has admitted to something in his affidavit, Secondary Evidence can be brought to the table for the same. If the defendant admitted to payment through cheque, a photocopy of the receipt of the cheque is allowed.
Apart from this, since sec 63 is exhaustive, separate provisions have been made to include electronic documents as secondary evidence. Currently Sec 65A and 65B inserted through Information and Technology act, 2000 provides for admissibility of tape, audio or video devices and CDs etc. Further even as back as 1967, the Court accepted a tape record in the case of Yusufalli Esmail Nagree v. State of Maharashtra. It held that if the tape record is shown to be accurate and relevant to the present case and it can be proved that the voice of the defendant matches to that in the tape record, it is very much admissible.
While to present a strong case, original and bona fide documents must be presented. However, Secondary Evidence, if proved to be accurate, will carry a similar kind of weightage as a Primary Evidence would do. The current jurisprudence lays down a lot of emphasis on various other factors revolving around an evidence which can prove its veracity and efficacy. Still, the distinction holds significance and thus, it’s much easier to present evidence if it’s classified as Primary.
Sec 63, Indian Evidence Act, 1872.
Girdhar Prasad v. Ambika Prasad Thakur, A.I.R. 1969 Pat 218.
Sec 76, Indian Evidence Act, 1872.
Sec 79, Indian Evidence Act, 1872.
KalyansinghvsSmtchhoti A.I.R 1990 SC 369.
John Mithalal Desai v. Dineshbhai K. Vora 1998 AIHC 1894.
YashwantRambhauChondhe v. Vilas BapuraoShindeA.I.R 2007 BomR(5) 525.
Anand Kumar Singhal v. BanarsiLall 1998 AIHC Sik 2287.
Kaliya v. State of Madhya Pradesh MANU/SC/0762/2013.
United India Assurance Co. Ltd. vsAnhar (2000) 10 SCC 523.
Gangaram M. Sawant v. Barkelo M. Sawant, A.I.R 2006 Bom 240.
Ashok Dulichand v. MadahavlalDube (1975) 4 SCC 664.
Sec 65, Indian Evidence Act, 1872.
Narsingh vs. Shripat SinghMANU/MP/1273/2014.
YusufalliEsmailNagree v. State of Maharashtra (1967) 3 SCR 720.
This article is authored by Mayuresh Kumar, Second-Year, B.A.LLB. (Hons.) student at Nalsar University of Law, Hyderabad.
Also Read – Admissibility Of Electronic Evidence