Secondary Evidence in Court Under Indian Evidence Act

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Author Aryan Sharma gives us a brief breakdown of the standards of evidence in Indian courts.

Image source: iPleaders

 

According to Section 63 of the Indian Evidence Act 1872, secondary evidence is considered an inferior type of evidence. It implies that even after producing secondary evidence one needs to produce primary evidence to fill in the gaps. Such evidence can be presented in the absence of the primary evidence, and, the notice of the same is to be given. However, if the secondary evidence is accepted without any objection and within a reasonable time, then the parties lose the right to argue that the point was proved with the help of secondary evidence and not primary evidence. Secondary evidence is the evidence that is reproduced from an original document or substituted for an original item. For example, a photocopy of a document or photograph would be considered secondary evidence. Another example would be a replica of an engine part that was contained in a motor vehicle. If the engine part is not the very same engine part that was inside the motor vehicle involved in the case, it is considered secondary evidence. Courts prefer original, or primary, evidence. They try to avoid using secondary evidence wherever possible. This approach is called the best evidence rule. In some cases, a court may allow a party to introduce secondary evidence in several situations. After hearing arguments by the parties, the court decides whether to admit secondary evidence after determining whether the evidence is, in fact, authentic or whether it would be unfair to admit the duplicate. However, when a party questions whether asserted writing ever existed, or whether writing, recording, or photograph is the original, the trier of fact makes the ultimate determination. The trier of fact is the judge if it is a bench trial; in a jury trial, the trier of fact is the jury.

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Under Section 76 the certified copies are defined. The correctness of certified copies will be presumed under Section 79, but that of other copies will have to be proved. This proof may be done so by calling a witness who can swear that he had compared the copy tendered in evidence with the original, or with some other person read as the contents of the original and that such is correct. Copies prepared by mechanical process and copies compared with such copies are mentioned in clause 2 of this Section. In the former case, as the copy is made from the original it ensures accuracy. To this category belong copies by photography, lithography, cyclostyle, and carbon copies. Section 62 (2) states that, where several documents are made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest, but where they are all copies of a common original, they are not primary evidence of the content of the original.

Counter foils -The counterfoils of rent receipts being admissible in favour of the landlord are not admissible against the tenant.

Photographs – Halsbury states “Photographs properly verified on oath by a person able to speak to their accuracy are generally admissible to prove the identity of persons, or the configuration of land as it existed at a particular moment, or the contents of a lost document”

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Xerox copy– A Xerox copy of the forensic report sent by FSL after certifying the same as a true copy, was held to be admissible in evidence as the officer of the FSL had no interest in concocting a report against the accused.

Photostat copy – A Photostat copy of a letter is a piece of secondary evidence, and it can be admitted in case the original is proved to have been lost or not immediately available, forgiven the reason, it is not conclusive proof in itself of the truthfulness of the contents contained therein. Photostat copies of documents should be accepted in evidence after examining the original records as the genuineness of a document was a fundamental question. The witness can be shown and questioned as regards the Xerox copy of the document on records and the same will not amount to an admission of the said document in evidence. If the witness admits the signature thereon, an objection can be raised at that time before the court that the document, being a copy, could not be exhibited. In a case where the Photostat copy of the original was produced, and there was no proof of its accuracy or of its having been compared with, or it is being true reproduction of the original it was held that the Photostat copy cannot be considered as secondary evidence, as a necessary foundation for its reception was not laid. A Photostat copy of

a document is not admissible as secondary evidence unless proved to be genuine or the signatory accepts his signature.

Carbon copy – A carbon copy of a signature is a piece of secondary evidence within the meaning of Section 63 (2) of this Act, being a copy made by a mechanical process that ensures its correctness. In a claim petition, the original insurance policy was not filed by the owner of the vehicle. He did not object to the geniuses of the printed copy of the policy giving particulars filed by the insurance company. He could not be allowed to object that the same could not be read as evidence.

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Typed copy – A typed copy of an alleged partition deed without alleging that the document falls under one of the categories enumerated in Section 63 of this Act, could not be held to be a piece of secondary evidence.

Tape-record – In the case of tape recording, which was referred to by the petitioner in support of his assertions as regards the substance of what passed between him and the chief minister of Punjab on several matters, there was no denial of the genuineness of the tape-record; and there was no assertion that the voices of the persons were not those which they purported to be. Copies made from or compared with original Copies made from the original or copies compared with the original are admissible as secondary evidence. A copy of a copy then compared with the original, would be received as secondary evidence of the original.

Counterparts – Execution of a document in counterparts has been already explained while dealing with explanation 1 to Section 62. The counterpart of the document is primary evidence against the parties executing them under Section 62 whereas, under this clause, they are secondary evidence as against the parties who did not execute their Oral accounts.

This is the last clause that enables an oral account of the content of a document as secondary evidence. The oral account of the content of a document given by a person who has merely seen it with his own eyes, but not able to read it is not admissible as secondary evidence. The word seen in clause 5 of this Section means something more than the mere sight of the document, and this contemplates evidence of a person who has seen and examined the document is in a position to give direct evidence of the content thereof. An illiterate person cannot have seen the document within the meaning of the Section. In Pudai Singh v. Brij Mangai, Allahabad HC held that with regards to the letting in of secondary evidence the word seen in this Section includes read over in the case of an illiterate witness and as such cannot himself read it, if it is read over to him, it will satisfy the requirement of the Section. But this ruling was not accepted by HC’s oral account of the content of a document by some person who has himself sent it. The oral account given by an illiterate person will be hearsay evidence and excluded by Section 60.

Registration copy – Where the plaintiff took a step to produce the original will but it was not produced by the parties in whose possession it was, it was held that the registration copies of the will which she filed, was admissible in evidence as secondary evidence.

Un probated will– It can be admitted in evidence for collateral purpose in any other proceeding apart from probate proceedings.

Age certificate – The age certificate issued by the headmaster of a school, based on an admission, was held to be not primary but a piece of secondary evidence. Voters list A voters list is not primary evidence of the date of birth but a piece of secondary evidence which was held in Mustafa v. Khurshida Newspaper report A news item published in a newspaper is at best second-hand secondary evidence. A fact has to be alleged and proved and then newspaper reports can be taken in support of it but not independently.


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