Define and distinguish between primary and secondary evidence. Under what circumstances is secondary evidence admissible in place of primary evidence?

Question: Define and distinguish between primary and secondary evidence. Under what circumstances is secondary evidence admissible in place of primary evidence? [M.P.C.J. 2012, BIHAR J. 2014]

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Answer

Section 61 Indian Evidence Act, provides two means to prove the contents of a document, either by primary or secondary evidence. It provides: “Proof of contents of documents: The contents of documents may be proved either by primary or by secondary evidence.”

Section 62 of the Indian Evidence Act describes what constitutes Primary evidence.

It says: Primary evidence means the documents itself produced for the inspection of the court. Primary evidence means the (original) document itself produced for the inspection of the court. Where a judgment originally written in English was translated into Urdu and the judge signed the translation.

It was held that it was primary evidence of its contents.2 If accounts are merely memoranda and rough books from which regular account books are prepared the former can hardly be said to be primary evidence.

Explanation to section 62: The first portion of the first explanation of the section refers to what is known as duplicate, triplicate or the like original. Sometimes it is convenient that each party to the transaction should have a complete document in his possession. To fulfil this purpose, the document is written as many times as there are parties and each document is signed by all the parties. All of them are originals.

Primary evidence is that which is called as the best evidence, or that kind of proof which under any possible circumstances, affords the greatest certainty of the fact in question; and it is illustrated by the case of a written document, the instrument itself is always regarded as the primary or best possible evidence of its existence and contents. The primary evidence means the document itself produced for the inspection of the court.

For instance: A executes a sale deed in favour of B for Rs. 1,000. B files a suit for the possession of the property on the basis of the sale deed mentioned above. A denies having executed the sale deed. B produces the very sale-deed before the court. This is the best evidence and so is the primary evidence of the contents of the document.

All evidence falling short of this in its degree is termed secondary. The primary evidence is that evidence which is produced in the court there remains nothing better to be produced. Evidence which carries, on its face; no indication that better remains behind, is primary. In the example given above if instead of producing the very sale-deed its copy is produced or somebody, who has read it, makes an oral statement about its contents there may always be some possibility of something being omitted or wrongly described which will be considered as Secondary evidence.

Section 63 of the Indian Evidence Act talks about what constitutes “secondary evidence”. It states 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 a document given by some person who has himself seen it.

Secondary evidence is that evidence may be given under certain circumstances in the absence of that better evidence which the law requires to be given first. Clauses 1 to 3 to section 63 deal with copies of documents.

However, it is to note that as held in Chimnaji Govind Godbole v. Dinkar Dhondev Godbole, (1886) 11 Bom 320 where a copy of a document is admitted in evidence in the trial court without objection, its admissibility cannot be challenged in the Appeal Court because omission to object to its admission implies that it is a true copy and, therefore, it is not open to the Appeal Court to say whether the copy was properly compared with the original or not.

1. The distinction between Primary Evidence and Secondary Evidence

Primary evidence as defined under section 62 of the Indian Evidence Act is an original document that is presented to the court for its inspection while secondary evidence as defined under section 63, is the Indian Evidence Act document that is not original and is presented when the first-hand evidence is not available.

Primary evidence is the best evidence in all circumstances but secondary evidence is not the best evidence but is evidence of secondary nature as is admitted as evidence only in exceptional circumstances. Admitting primary evidence is a general rule but giving secondary evidence is an exception to the general rule.

No notice is required before giving primary evidence but in secondary evidence, notice is required to be given beforehand.

The value of primary evidence is highest but the value of secondary evidence is not like that of primary evidence as it is only allowed to be admitted in exceptional cases when there is no original evidence.

2. Circumstances in which secondary evidence is admissible in place of primary evidence

Section 65 gives us seven conditions in which a document can be proved by secondary evidence. They are:

1. When the original document or the primary evidence is not in the possession of the person who has to prove it. In this case, any secondary evidence of the contents of the document is admissible.
2. When the existence, condition and contents of the original have been proved to be admitted by the party against whom the document is supposed to be proved then the written admission is admissible.
3. When the original has been destroyed or lost or for some reason except for reasons of the party’s own default or neglect, cannot do it in a reasonable time. In this case, too any secondary evidence of the contents of the document is admissible.
4. When by the virtue of nature of the original document it cannot be easily movable then 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 then a certified copy of the document, but no other kind of secondary evidence, is admissible.
6. When the certified copy of the original document is permitted to be produced as evidence by this act or any other law present in India then a certified copy of the document, but no other kind of secondary evidence, is admissible.
7. 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 then, 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.

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Important Mains Questions Series for Judiciary, APO & University Exams

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2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
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10. Law of Evidence Mains Questions Series Part-X