Documentary Evidence: Primary Evidence and Secondary Evidence

Introduction

Evidence law is considered a guide that helps the courts to reach out to a decision while examining a case. The term evidence has come from a Latin term ‘evident’ which means ‘to show clearly’ or to prove. Evidence is primarily divided into two types, One is documentary evidence and second is oral evidence. Documentary Evidence is defined under Section 3 and Chapter V ‘Of Documentary Evidence’ from sections 61 to 65 of the Indian Evidence Act 1872 wherein Section 3 gives the definition of the Documentary evidence and Sections 61 to 65 lay down as to how a fact may be proved by Documentary evidence.

Description of Documentary Evidence

The Word ‘Document’ has been described in section 3 of the evidence act, which hereby means any matter expressed or described upon any substance by means of letters, figures or by more than one of those means intended to be used or which may be used for the purpose of recording that matter. The most common document is a document which is described by letters which can be in a language such as things written in Hindi, English, Urdu etc.

Provisions under Evidence Act

The provisions related to the documentary evidence are provided under section 3 Chapter V of the Indian Evidence Act 1872 which are hereby explained:

Section 3 Interpretation Clauses “Document”

Section 3 of the Act defines the term “document”. Any matter which is expressed or described on any substance by means of letters, figures or marks or by more than one means and which can be used for recording the matter is considered as a document. The definition of the term document given in this section is very wide in scope. In general terms, the word document is understood to mean any matter written upon a paper in some language, such as English, Hindi, Urdu etc., a banner with an inscription, a musical composition, a tattoo, a symbol etc.

Section 61 Proof of Contents of Documents

Provisions under this section state that the contents of documents must be proved either by primary evidence or secondary evidence. It also clarifies that in law there is no other method allowed for proving the contents of the document.

Section 62 Primary Evidence.

This section states that the primary evidence is the original document itself produced to the inspection of the court. It is called the best evidence, or that kind of proof which under any possible circumstance affords the greatest certainty of the fact in issue.

Section 63 Secondary Evidence.

This section states that the secondary evidence is the copy or a certified copy of the original document. It contains five subsections including an oral statement given by a person about the contents of the documents after reading the document by himself. The kind of evidence stated in this section is only considered with certain conditions which are hereinafter mentioned.

Section 64 Proof of documents by primary evidence.

Section 64 states the best evidence rule with reference to documentary evidence. It implies that the best evidence of the contents of the document is the document itself which is the original document. This section lays down that the contents of a document must be proved by producing the original in the court. It also states its connection with its subsequent section, section 65, which acts as an exception to this section.

Section 65 Cases in which secondary evidence relating to documents may be given.

Conditions enlisted in section 65 must be fulfilled before a secondary evidence is presented in the court. Secondary evidence of the contents of a document cannot be admitted without the non production of the original being first accounted for in such a manner as to bring it within one or other conditions provided in section 65.

This section clearly states the conditions and circumstances wherein the secondary evidence can be accepted by court of law. It is meant for protection of rights of the persons who in spite of their best efforts are not able to present the primary evidence in the court due to the circumstances beyond their control.

Primary Evidence

Primary Evidence is considered the highest class of evidence or the best evidence. As per Section 62, when the document itself is produced for the inspection of the court, it is called the primary evidence. If the document is in parts, then each part forms the primary evidence. Giving primary evidence is a general rule of evidence law and no notice is required to be served before the presentation of primary evidence in the courts of law.

Secondary Evidence

Secondary evidence is presented in the absence of primary evidence and is not the best form of evidence. It is the document which is not the original document but the copy of the original or those documents which are enlisted under section 63, it is admitted in exceptional circumstances mentioned in section 65. It is only presented in the absence of primary evidence. Giving secondary evidence is an exception to the general rule and there is a notice required to be served to the court before producing a secondary evidence.

Relevant Case Laws on Documentary Evidence

  • K.S. Mohan v. Sandhya Mohan AIR 1993 Mad 59
    • Madras High Court

In this case it was held that a tape-recorded statement is admissible as secondary evidence with certain conditions keeping in mind that the accuracy of the tape recorded statement has to be proved by the maker of the record with every possibility of tampering with the record should be ruled out.

  • Kripa Shankar v. Gurudas AIR 1995 SC 2152
    • Supreme Court of India

In this case the appeal to the Apex court was dismissed with no cost stating that an ex-parte affidavit cannot be a documentary evidence of any form without affording an opportunity to another party to test the accuracy of its contents by cross examination.

  • J. Yashoda v. K. Shobha Rani AIR 2007 SC 1721
    • Supreme Court of India

In this case the original document was with another person and was not retrieved for the comparison of duplicates with original. The conditions prescribed in section 65 of the evidence act were not satisfied and the duplicate document was not admitted as secondary evidence as clause (a) of section 65 was not followed. Therefore the apex court upheld the order of the High Court and dismissed the appeal.

Conclusion

With this we come to the conclusion that the best evidence to prove a fact is considered in the form of a document as it is reliable and less likely to be manipulated with it being in a physical written form. The court requires the best evidence and documentary evidence is the best evidence. 

Documentary evidence given as primary evidence is considered the highest form of evidence and secondary evidence is not the highest but considered in the exceptional circumstances where the primary evidence is not available, however secondary evidence plays a vital role in helping courts to reach a verdict and clear the path of Justice.

Reference

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