In this article we shall discuss secondary evidence. Documentary evidence means and includes all documents including electronic records produced for the inspection of the Court. Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used for the purpose of recording that matter.
In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318 case, the Supreme Court held that in order to prove the documents original document is to be produced. Contents of it are to be proved so also signature on the same have to be proved. When document appeals to the conscious of the Court that it is genuine, contents of the same need not be proved.
In S. Ravichandra v. M/s. Elements Development Consultants, Bengaluru, 2018 Cri. LJ 4314 (Kar) case, the Court observed that mere marking of a document cannot be said to be the proof of said document. The document has to be proved in accordance with law and the same has to be appreciated in order to ascertain the genuineness of the document with other materials available on record. In that context, both the parties would get ample opportunity to counter those documents as well to submit their arguments with reference to the evidence already recorded by the court.
Section 61 IEA:
Proof of Contents of Documents:
The contents of documents may be proved either by primary or by secondary evidence.
No document can be admitted till that is established as per procedure prescribed in the act.There should be proof as to contents of document. Section 61 provides that the contents of document can be proved either.— (i) by primary evidence, i.e. by producing the document itself (Section 62) or (ii) by secondary evidence (Section 63). When primary evidence is not available secondary evidence may be permitted by the court to prove the contents of document. There is no other method of proving the contents of document.
In G. Subbaraman vs. State, 2018 Cri. LJ 2377 (Mad) case, the Court held that normally, any party who wants to prove the content of the document is required to lead evidence by production of the original document before the court through its author. Under Section 61, the original document can be presented before the Court through the author, who created the document and it can be proved.
Section 63 IEA:
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 ensure 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 documents given by some person who has himself seen it.
Illustration:
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but he copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.
Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Essentially, secondary evidence is evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence “means and includes” and then follow the five kinds of secondary evidence.
Secondary evidence can be accepted by the Court for the existence, condition or contents of a document;
- when the original appears to be possession or power of the person against whom the document is to be in the possession or power of the person against whom the document is sought to be proved, or of a person not subject to the power of the Court or of any person legally bound to produce it, who has not it despite being given the required statutory notice,
- when the party offering such evidence cannot, though no default or neglect of his own, produce the original in reasonable time.
- when the original document is not easily movable,
- when the original document comprises numerous accounts or other documents which cannot be conveniently examined in Court and the fact to be proved is the general result of the whole collection.
In M.Chandra v. M. Thangamuthu, 2010 AIR SCW 6362 case, the Court said that: “It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where party is genuinely unable to produce the original through no fault of that party”
In Kalyan Singh v. Chhoti, AIR 1950 SC 396 case, the Court held that under Evidence Act five kinds of secondary evidences are mentioned. Sub sections (1), (2) and (3) mention certified copies of a document. Sub section 4 refers to counter parts of documents. Sub section (5) is concerned with the oral statement about the contents of document.
The documents obtained under RTI Act can be admitted as secondary evidence, as they are obtained under a particular enactment, which fall within ambit of by “any other law in force in India”
Certified copies:
Section 76 of the Act defines the term “certified copies”. According to Section 76 of the Act, 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 therefor, together with a certificate written at the foot of such copy that it is a true copy of such document of part thereof, as the case may be, and such certificate shall be dated and subscribed by such document of part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and 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.
‘A’ purchased a house from ‘B’ and got registered before the Sub-Registrar of Stamps and Registration. The original registered document is primary evidence. If the original registered document is stolen or burnt in fire accident or lost in travel, ‘A’ can obtain the certified copy of the registered sale deed from the office of Sub-Registrar is a valid document, and is secondary evidence.
Copies prepared by mechanical process:
The copies prepared by mechanical process and copies compared with such copies is mentioned in clause 2 of this section. In the former case, as the copy is made from the original it ensure accuracy. To this category belong copies by photography, lithography, cyclostyle, carbon copies. Section 62 (2) states that, where a number of document 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.
In Manorama v. Saroj, AIR 1981 All 17 case, the Court held that a photostat copy of a document is not admissible in evidence. Only certified copy is admissible.
In Suresh Banik v. State, AIR 1976 SC 1748 case, the Court held that a photostat copy of a document is admissible as secondary evidence if it is proved to be genuine. The genuineness is to be proved either by examining the photographer or by some other evidence.
In Ashok v. Madho Lal, AIR 1975 SC 1748 case, the Court held that in case of a photo copy of a document before it is admitted in evidence it has to be explained as what were the circumstances under which the photostat copy was preferred and who was in possession of the original document at the time its photograph was taken and that would be above suspicion.
State of Gujarat v. Bharat, 1991 Cr LJ 978 case, the Court held that a photograph can be proved by examining the photographer and by proving the negative.
In Surinder Kaur v. Mehal Singh (2013) case, the Court elaborating guidelines observed:
- A photocopy of the original document can be allowed to be presented as secondary evidence only in the absence of the original document.
- When a photostat copy is presented as evidence, it is on the party producing it to prove that the original document existed and is lost or is in possession of the opposite party who failed to produce it. Mere assertion is not sufficient to prove it.
- After the photocopy is produced in the court as evidence, the opposite party must raise its objections regarding the non-existence of such circumstances or foundational facts at the earliest.
- When any such objections are raised, the authenticity of the copy must be determined as every copy produced from the mechanical process might not be accurate.
- Mere production of copy as the evidence does not amount to its proof. Its correctness has to be evaluated and proved independently. It has to be shown that it was made from the original document at a specific time and place.
- In instances where the photostat copy is itself suspicious, it is not to be relied upon, unless the court is satisfied that it is genuine and accurate.
- The genuineness of the copy is to be proved on oath by the person who made the copy or who can vouch for its accuracy, to the satisfaction of the court.
Copies Made from or Compared with the 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. A copy of a certified copy of a document, which has not been compared with the original, cannot be admitted in evidence, such a copy being neither primary or secondary evidence of the contents of the original.
Counterparts of Documents:
A counterpart of document are primary evidence as against the parties executing them under section 62 and is secondary evidence as against the parties who did not execute it.
Oral Accounts of the :
Oral accounts of a person about the content of a document must be closely examined. Not examining the informant or not presenting the report of that person is fatal and such a person’s report cannot be relied upon in such a case.
This is last clause enable oral account of the content of a document being 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 having seen and examined the document is in a position to give direct evidence of the content thereof. An illiterate person cannot be one who has seen the document within the meaning of the section.
In Pudai Singh v. Brij Mangai, allahbad HC held that as regards the letting in of secondary evidence the word seen in this section includes read over in the case of a witness who is illiterate 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 oral account of the content of a document by some person who has himself sent it. Oral account given by an illiterate person will be hearsay evidence and excluded by section 60.