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KEY TAKE AWAYS

  • “Evidence”- “Evidence” means and includes all the statements which the court allows or must be made before it by witnesses, in regards to matters of fact under inquiry, such statements are called verbal evidence
  • Documents including electronic records produced for the inspection of the court are called documentary evidence.
  • Primary evidence refers to the documents that were produced for the inspection of the Court.
  • Secondary evidence is evidence that has been reproduced from an original document or substituted for an original item.

PRIMARY AND SECONDARY EVIDENCE

EVIDENCE

As mentioned above, The Indian Evidence Act, 1872 (Hereinafter referred because the Act) is that the law governing the evidence and Section 3 delineates the definition of “Evidence”.

“Evidence”- “Evidence” means and includes all THE statements which the court allows or must be made before it by witnesses, with regard to matters of fact under inquiry, such statements are called verbal evidence;

In the same way all documents including electronic records produced for the inspection of the court, such documents are called documentary evidence.

DOCUMENTARY EVIDENCE

Documentary Evidence is delt in Chapter V of the “Act” which comprises of Section 61 to 90A. As mentioned especially within the documents including electronic records produced for the inspection of the court are called documentary evidence. the overall rule is that the simplest evidence should be brought before the Court; however, there could also be circumstances when due to many a reason best evidence can't be brought before the court e.g., when the first document is lost or destroyed etc. Therefore, how a document is to be proved when it’s original isn't alive or within the possession of the party who wishes to depend on it.

Section 61 of the Indian Evidence Act, 1872 mentions that the contents of the documents could even be proved either by primary or by secondary evidence. Here, the apparent question arises what's primary and secondary evidence. “Primary Evidence” is defined in Section 62 of the Act. It posits that the document itself produced for the inspection of the court is named “Primary Evidence”. the 2 explanations appended with the section further elaborate the concept.

PRIMARY EVIDENCE

Primary evidence refers to the documents that were produced for the inspection of the Court. According to Section 62, primary evidence is taken into account to be the topmost class of evidence. Such evidence is an ingenious document that must be submitted before the court for inspection. Moreover, it's admissible with none prior notice. Such evidence is presented before the court before the secondary evidence is presented.

Moreover, secondary evidence is often presented only within the absence of primary evidence by explaining the rationale for the absence of such evidence. Primary evidence, more commonly referred to as best evidence, is that the best available substantiation of the existence of an object because it's the particular item. It differs from secondary evidence, which may be a copy of, or substitute for, the first. If primary evidence is out there to a celebration, that person must offer it as evidence.

SECONDARY EVIDENCE

Secondary evidence includes:

  1. Certified copies given under the provisions.
  2. Copies made from the primary by mechanical processes which in themselves confirm the accuracy of the copy, and copies that are compared with such copies.
  3. Copies made up of or compared with the first.
  4. Counterparts of documents as against the parties who didn't execute them.
  5. Oral accounts of the contents of a document given by some one that has himself seen it.

According to Section 63, secondary evidence is taken into account to be an inferior sort of evidence. It implies, that even after producing secondary evidence one must produce primary evidence so as to fill within the gaps. Such evidence is often presented within the absence of the first evidence; however, the notice of an equivalent is to tend. However, if the secondary evidence is accepted with none objection within an inexpensive time, then the parties don't have the proper to argue that the purpose was proved with the help of secondary evidence and not that of primary evidence.

TYPES OF SECONDARY EVIDENCE AND JUDICIAL DECISIONS

Under section 76 the certified copies are defined. The correctness of certified copies goes to be presumed under section 79, but that of other copies will got to be proved. This proof could also be afforded by calling a witness who can swear that he had compared the copy tendered conspicuous with the first, or with another person read because the contents of the first which such is correct. 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. within the former case, because the copy is formed from the first it ensures accuracy. to the present category belong copies by photography, lithography, cyclostyle, and carbon copies. Section 62 (2) states that, where variety of document are made by one uniform process, as within the case of printing, lithography, or photography, each is primary evidence of the contents of the remainder, but where they're all copies of a standard original, they're not primary evidence of the content of the first. Counter foils

The counter foils of rent receipts being an admissible in favour of the owner aren't admissible against the tenant. Photographs

HALSBURY states that photographs that are properly verified under oath by an individual ready to speak to their accuracy are generally admissible to prove the identity of persons, or of the configuration of land because it existed at a specific moment, or the contents of a lost document” xerox

A xerox of the forensic report sent by FSL after certifying an equivalent as true copy, was held to be admissible conspicuous as officer of the FSL had no interest in concocting report against the accused.

CIRCUMSTANCES UNDER WHICH SECONDARY EVIDENCE COULD ALSO BE TENDERED

Though the rule is that the simplest evidence is to be tendered. However, there are some circumstances under which secondary evidence are often given and these circumstances are mentioned under Section 65 of the Indian Evidence Act, 1872. However, before tendering the secondary evidence of any document the court has got to be satisfied regarding the conditions mentioned in Section 65 of the Act, before any secondary evidence is allowed to be tendered. The court has got to see that the salutary provisions of Section 65 aren't abused.

HALSBURY states that photographs that are properly verified under oath by an individual ready to speak to their accuracy are generally admissible to prove the identity of persons, or of the configuration of land because it existed at a specific moment, or the contents of a lost documentxerox

A xerox of the forensic report sent by FSL after certifying an equivalent as true copy, was held to be admissible conspicuous as officer of the FSL had no interest in concocting report against the accused.

CIRCUMSTANCES UNDER WHICH SECONDARY EVIDENCE COULD ALSO BE TENDERED

Though the rule is that the simplest evidence is to be tendered. However, there are some circumstances under which secondary evidence are often given and these circumstances are mentioned under Section 65 of the Indian Evidence Act, 1872. However, before tendering the secondary evidence of any document the court has got to be satisfied regarding the conditions mentioned in Section 65 of the Act, before any secondary evidence is allowed to be tendered. The court has got to see that the salutary provisions of Section 65 aren't abused. The Hon’ble Supreme court of India has held to the effect that “the secondary evidence must be authenticated by foundational evidence that the alleged copy is actually a real copy of the first. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to supply relief during a case where a celebration is genuinely unable to supply the first through no fault of that party”.

ELECTRONIC RECORDS

Though discussion on Electronic Record may be a distinct concept warranting a whole discussion; however, on a parting note some regard to it becomes necessary. Special provisions were inserted within the Act within the year 2000 regarding admissibility of electronic records within the sort of Sections 65A and 65B. Section 65A mentions that the contents of electronic records could also be proved in accordance with the provisions of section 65B3. Section 65 B which is an exhaustive provision provides for the procedure and therefore the formalities to prove the contents of an electronic record. Broadly, it mentions that a certificate complying the terms of Section 65 B (4) purporting to be signed by an individual occupying a responsible official position in reference to the operation of the relevant device is to be tendered. The provisions regarding the electronic records have filled in lacunae in today’s digital age where electronic records became a part of crucial evidences in court of law.

PHOTOSTAT COPY

A Photostat copy of a letter may be a piece of secondary evidence, and it are often admitted just in case original is proved to possess been lost or not immediately available, for given reason, it's not conclusive proof in itself of the truthfulness of the contents contained therein. Photostat copies of documents should be accepted conspicuous after examining the first records as genuineness of a document was a fundamental question. The witness is often shown and questioned as regards the xerox of the document on records and therefore the same won't amount to admission of the said document conspicuous. If the witness admits the signature thereon, an objection is often raised at that point before the court that the document, being a replica, couldn't be exhibited. during a case where the Photostat copy of the first was produced, and there was no proof of its accuracy or of its having been compared with, or its being true reproduction of the first it had been held that the Photostat copy can't be considered as secondary evidence, as necessary foundation for its reception wasn't laid. A Photostat copy of a document isn't admissible as secondary evidence unless proved to be genuine or the signatory accepts his signature. carbon

A carbon of a signature may be a piece of secondary evidence within the meaning of section 63 (2) of this Act, being a replica made by a mechanical process which ensures its correctness. during a claim petition, the first policy wasn't filed by the owner of the vehicle. He didn't object to the geniuses of the printed copy of the policy giving particulars filed by the insurance firm. He couldn't be allowed to boost objection that an equivalent couldn't be read as evidence. Typed copy

A typed copy of an alleged partition deed without alleging that the document falls under one among categories enumerated in section 63 of this Act, couldn't be held to be secondary evidence. record

In the case of tape, which was mentioned by the petitioner in support of his assertions as regards the substance of what passed between him and therefore 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 weren't those which they alleged to be. Copies made up of or compared with original Copies made up of the first or copies compared with the first are admissible as secondary evidence. a replica of a replica then compared with the first, would be received as secondary evidence of the first.

COUNTERPARTS

Execution of a document in counterparts has already been explained while handling explanation 1 to section 62. Counterpart of document is primary evidence as against the parties executing them under section 62 whereas under this clause, they're secondary evidence as against the parties who didn't execute them Oral accounts.

This last clause enables verbal account of the content for a document to be treated as secondary evidence. The oral account of the content of a document given by an individual who has merely seen it together with his own eyes, but unable to read it's not admissible as secondary evidence. The word seen in clause 5 of this section means something quite the mere sight of the document, and this contemplates evidence of an individual who having seen and examined the document is during a position to offer evidence of the content thereof. An illiterate can't 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 during this section includes read over within the case of a witness who is illiterate and intrinsically cannot himself read it, if it's read over to him, it'll satisfy the need of the section. But this ruling wasn't accepted by HC oral account of the content of a document by some one that has himself sent it. Oral account given by an illiterate are going to be evidence and excluded by section 60. Registration copy

Where the plaintiff took step to supply original will but it had been not produced by the parties in whose possession it had been, it had been held that the registration copy of the desire which she filed, was admissible conspicuous as secondary evidence. Unrebated will

Unrebated will are often admitted conspicuous for collateral purpose in the other proceeding aside from probate proceedings.

Age certificate The age certificate issued by headmaster of a faculty on the idea of admission from was held to be not a primary but secondary evidence. Voters list A voters list isn't primary evidence of date of birth but secondary evidence which was held in Mustafa v. Khurshida Newspaper report an item published during a newspaper is at the best second-hand secondary evidence. A fact has got to be alleged and proved then newspaper reports are often taken in support of it but not independently.

CONCLUSION

Evidence is an important part of every case, whether it's a criminal case or a lawsuit because it validates a fact. The facts are often utilized in evidence for deciding also as proving the disputed facts. Evidence attaches the importance to the facts quoted as evidence. Thus, various sorts of evidence are often used for proving and disproving facts. Moreover, evidence helps in curbing down the time dedicated to a specific case. Thus, it is often concluded that the evidence is for judicial behaviour just like the reasoning for logic.


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