Secondary Evidence in Court Under the Indian Evidence Act

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Introduction 

Evidence is tendered by all sides to prove an argument in a court of law, and some codified requirements apply to ensure that the evidence is tendered within the bounds specified by law. The Indian Evidence Act of 1872 is the statute that regulates the submission of evidence in judicial proceedings, whether civil, criminal or other unless it is expressly prohibited by law. “Evidence” refers to all comments made before the court by witnesses concerning matters of fact under investigation, which are referred to as oral proof; and all papers, including electronic records, created for the court’s review, which are referred to as documentary evidence.2

Documentary proof is dealt with in Chapter V of the Indian Evidence Act. It also divides documentary evidence into two categories: primary and secondary evidence. According to Section 64 of the Indian Evidence Act, the original document must be created to prove it. Primary and secondary evidence may be used to show the contents of a text. 3 Any matter conveyed or represented on any material by letters, figures, or labels, or by more than one of those means intended to be used, or which may be used, to document that matter, is referred to as documentation. Writing, printing, lithograph, photograph, map, plan, inscription on a metal plate or stone, plaque, caricature, etc.

Secondary Evidence 

Evidence that has been copied from an original document or is a substitute for an original item is referred to as secondary evidence. A photocopy of a text or photograph, for example, documents classified documents evidence. It is evidence that can be provided in the absence of primary evidence in certain circumstances.  Original, or primary, evidence is preferred by courts. Wherever possible, they try to avoid using secondary evidence. The best evidence rule is the name for this technique. A court can, however, allow a party to bring secondary evidence in a variety of circumstances. Section 63 of the Indian Evidence Act defines secondary evidence, which may be used in place of primary evidence in some cases described in Section 65 of the Indian Evidence Act. Section 63 contains five clauses, the first three of which deal with certified copies of documents, the fourth with counterparts of documents, and the fifth with an oral declaration about the contents of documents.

Certified copies

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→ The term “certified copies” is specified in Section 76. Under Section 79, the correctness of certified copies will be assumed, but the correctness of other copies will have to be determined.

Section 3 of Indian Evidence Act – Definition of ‘document’ “Document” means any matter expressed or described upon any substance through letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, to record that matter.

This proof can be obtained by calling a witness who can swear that he compared the copy in evidence to the original, or that he read the contents of the original to someone else and that they are correct.

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→ Photographic, lithographic, cyclostyle, and carbon copies are examples of mechanical copies. Only in the absence of the original document can a photostat copy of a document be made.

→ Secondary evidence also includes copies made from the original or copies compared to the original. When opposed to the original, a duplicate of a copy is accepted as secondary proof of the original.

Counter Parts

The document’s counterparts serve as secondary evidence against the individual who did not sign it.

Oral declaration

When a report is based on information provided by another person, failing to investigate the informant or failing to produce the report is fatal, and no emphasis can be put on the person’s or report’s version.

When secondary evidence can be given in place of primary evidence 

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Secondary evidence is admissible in seven situations under Section 65 : 

a) When the original is shown or appears to be in the possession or power –

When the original document is in the possession of – The person who is being held accountable for the paper, any person who is not subject to the court’s procedure or is not within its jurisdiction, anyone who is legally obligated to manufacture it or anyone who fails to produce it after being provided with the due notice under Section 66 of the IEA, 1872.

b) When the existence, condition or contents of the original have been proved to be admitted in writing.

c) When the original has been destroyed or lost –

Secondary evidence of a document’s contents is admissible after it has been lost or destroyed. The court must be confident that the record exists, that the loss or destruction occurred, and that a fair explanation for the loss or destruction was given.

d) When the original is of such a nature as not to be easily movable.

e) When the original is a public document.

f) When the original is a document of which a certified copy is permitted by this Act.

g) When the original consists of numerous accounts or huge documents –

While a witness cannot be questioned about the contents of a document that has not been made, he may be questioned about the overall outcome of a large number of documents that are too lengthy to be read in court.

→ After hearing the parties’ claims, the court determines whether to consider secondary evidence after deciding whether the evidence is genuine or whether admitting the duplicate would be unreasonable. When a party disputes whether a claimed writing ever occurred, or whether writing, video, or image is the genuine article, the trier of fact makes the final decision. In a bench trial, the trier of fact is the judge; in a jury trial, the trier of fact is the jury.


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