SECTION 63 - SECONDARY EVIDENCE - INDIAN EVIDENCE ACT, …

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25 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 3

SECTION 63 - SECONDARY EVIDENCE - INDIAN EVIDENCE ACT,

1872

Authored by: Kanishka Shankar* & Kang Lama** & Richin Jacob***

* 3rd year BBA L.L.B (Hons.) Student, Symbiosis Law School, Pune

**3rd year BBA L.L.B (Hons.) Student, Symbiosis Law School, Pune

***3rd year BBA L.L.B (Hons.) Student, Symbiosis Law School, Pune

__________________________________________________________________________________

ABSTRACT

An exception or rather a corollary to the Best Evidence Rule is Secondary Evidence. Courts

usually shy away from accepting evidence which are not original. However, Section 63 of the

Indian Evidence Act, 1872 (“IEA”) provides for the exception of Secondary Evidence.

The following Note on Secondary Evidence takes us through the contours of it, helping better

understand the two essential conditions for adducing secondary evidence in the court of law. It

also enumerates and analyses few key kinds of secondary evidence to help better understand

their admissibility for to-go use.

BACKGROUND

In earlier times, before the advent of technologies like photocopying and photography, people

used to copy originals by hand. Scribes used to prevalent and helped note down contents of the

original documents. Since to err is human, the copies made were bound to be riddled by

mistakes and therefore, could have been said to be not the true copies of the original.

The English Courts, long back in 1800s, recognized this menace and came up with the rule of

best evidence. Accordingly, only the original document would be accepted in the court of law

as legitimate proof unless there is a reasonable excuse to not present the originals.1

1 Arora, Himanshu, Best Evidence Rule - Sec 91 -100 of Indian Evidence Act, (April 1, 2013),

http://dx.doi.org/10.2139/ssrn.3534022.

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A natural corollary to this was secondary evidence. Therefore, as noted above, secondary

evidence is given in the absence of the primary which the law requires to be given first, when

a proper explanation of the latter’s absence is given.2

Section 63 of the Indian Evidence Act (“IEA”) provides an exhaustive definition of secondary

evidence and its five kinds.3 Secondary evidence in its uncomplicated form can be defined as

a copy of the original evidence that has been reproduced from an original document or

substituted for an original item.4 For example, the true copy of a judgement obtained from

authorities is a type of secondary evidence. Photocopy of a document or a photograph is also

a type of secondary evidence.

In Smt. J. Yashoda v. Smt. K. Shobha,5 the Hon’ble Supreme Court held that,

“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 an 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. The rule, which is

the most universal, namely that the best evidence the nature of the case will admit shall be

produced, decides this objection that rule only means that, so long as the higher or superior

evidence is within your possession or may be reached by you, you shall give no inferior proof

in relation to it.”

PRIMARY EVIDENCE V. SECONDARY EVIDENCE

It becomes imperative to compare and contrast the two kinds of evidence based on the rule of

best evidence. Section 61 of the IEA defines what a primary evidence whereas Section 63 IEA

covers secondary evidence. Primary evidence is the document itself, that is, the original

2 J Yashoda v. K Shobha Rani, AIR 2007 SC 1721 3 Ibid 4 JRank, Secondary Evidence, (April 2, 2013),

https://law.jrank.org/pages/10074/Secondary- Evidence.html#ixzz6gPxiQORM. 5 Supra Note 2

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document, which is produced for the inspection of the Court. Secondary evidence is not the

original document, but a copy of or has been reproduced from, the original document that is

presented in the court.

Before presenting a primary evidence, no notice is required. A notice is required to be given

before the secondary evidence is presented, however, such restriction is a rule of prudence.

Primary evidence is the best evidence, and it is a general rule to give this evidence. Secondary

evidence is only admissible in the court when the provisions of Section 65 is applicable to the

case. In a nutshell, secondary evidence is a substitute for primary and therefore, is of

lesser evidentiary value.

WHAT IS A COPY?

A copy is a document prepared from the original and is a true/accurate and full reproduction

of the original document.6 A copy to be admitted as secondary evidence must satisfy

following three parameters:

a. Formal Proof: The party who seeks to take benefit of secondary evidence must prove

the genuineness of it. Proving the handwriting of the document or the signature on it

goes to the genuineness of it. Handwriting or signature of a document can be identified

by the author himself under Section 67 or any third person acquainted with the

handwriting in question under Section 47 or by the witness in whose presence the

document was executed under Section 67 & 68 or by an expert witness under Section 45.

The exception to this rule is certified copies which are presumed to be correct and

genuine under Section 79.

b. Proof of content: The Bombay High Court in the case of Om Prakash Berlia v. Unit

Trust of India observed that,

“expression ‘contents of a document' under the Evidence Act must mean only 'what

the document states and not the truth of what the document states' and that the truth of

6 Hindustan Construction Co. Ltd. v. Union of India, AIR 1967 SC 526

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contents of a document cannot be proved merely by producing the document for

the inspection of the court.”7

For example, A emailed B that C had given him money in exchange for B’s horse. Proof

of content, in this case, would be proving that A actually wrote such a mail to B. But

that would not establish the veracity of the contents contained therein.

c. Truthfulness of Contents: The Bombay High Court in Bima Tima Dhotre v. Pioneer

Chemical Co.8, observed that the truthfulness of the contents of the document is to be

proved by personal knowledge. Ordinarily, the witness who has been called by the party

intending to rely on a document, must have personal knowledge of the document.

Hence, it can be said that truth of the contents of a document must be proved either by

the author or by 'the person who knows and understands the contents', that is persons

having personal knowledge of a document.

It is after hearing the party intending to rely on secondary evidence on the

aforementioned parameters, the Court rules on the admissibility of secondary evidence.

In Sudhir Engg. v. Nitco Roadways Ltd.9, Delhi High Court held that, the mere

admission of a document in evidence does not amounts to it prove. It was held that a

document filed by a party goes through three stages before it is held proved or disproved:

Firstly, the stage in which the document is filed in court.

Secondly, the stage in which the party tenders or produces the document in evidence and

the court admits the document; and thirdly, the stage in which the court applies its

judicial mind, and the document is held proved, disproved, and not proved.

Once, the above mentioned three criteria are fulfilled a document is said to be

'proved' as defined under Sec.3 of the Evidence Act. If not, then document is said to be

'disproved' or 'not proved' as the case may be.

Therefore, for Secondary Evidence to be proved, two essentials must be fulfilled:

7 Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1 8 Bima Tima Dhotre v. Pioneer Chemical Co., (1945) 56 Bom. L.R. 147. 9 Sudhir Engg. v. Nitco Roadways Ltd., 1995 34 (DRJ) 86.

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OBJECTIONS

When a copy of a document has been admitted in the Court of first instance without any

objection, the appellate Court is not entitled to allow any objection to be taken to its

admissibility at the appellate stage.

When a document is admitted as secondary evidence by the trial Court without any objection,

that is to say, it is admitted as being a true copy, it is not open to an appellate Court to consider

whether, in fact, the provisions of section 63 of the Evidence Act were complied with or not

when it was admitted, and the Court is not entitled to take evidence offered to prove that the

document is not a true copy of the original.

ANALYSIS OF SECTION 63 ON INDIAN EVIDENCE ACT, 1872

“63 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

insure 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.

VALIDITY OF

SECONDARY

EVIDENCE

JUSTIFICATION

FOR ABSENCE

OF PRIMARY

EVIDENCE

SECONDARY

EVIDENCE

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1. CERTIFIED COPIES

COPIES 2. COPIES MADE BY

MECHANICAL PROCESS

4. COUNTERPARTS 3. NORMAL COPIES

5. ORAL ACCOUNTS

It can be bifurcated as follows:

a. Certified Copies: A certified copy is a copy signed and certified as true by the officer

to whose custody the original is entrusted, and it is admitted upon the credit of such

officer without comparing with the original.10

This is perhaps the only evident exception to the rule of best evidence. Under Section 79

of the IEA, Certified Copies are assumed to be true and genuine. Such an exception is

only for certified copies and no other kinds of document. By virtue of Section 63 read

with Section 79, a certified copy is admissible without any formal proof. Therefore, in

this instance, the secondary evidence by way of certified copy assumes the character of

primary evidence.

However, a certified copy is proof of the existence, condition, and contents of a

document and not of its execution which still has to be proved. The party intending to

rely upon such must discharge its duty of proving the execution of the original.11

b. Copies made by Mechanical Processes, and Copies Compared with Machine-Made

Copies (Clause 2): When a number document is made by a uniform process like

photography, lithography, or printing then each such document is a primary evidence of

the other. But in a case where they are all copies of the original, then such would fall

under the category of secondary evidence.

10 Phipson Evidence, 7th Edn., 519. 11 Chuha Mal v. Rahim Bakhsh, 71 IC 568: 1924 L 303.

SEC

TIO

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For example, during formal functions multiple placards for the same designation/name

are printed at the same time. Each such placard acts as primary evidence. But when a

placard is made subsequently by photocopying the earlier one, then such would be

secondary evidence.

When such a copy is compared with the mechanical reproduction of the original, it is

held to be good secondary evidence.12 But when a copy is not produced by mechanical

reproduction and is not proved to have been compared with the original, then such would

not be admissible as secondary evidence.

Copies made from original by mechanical processes which in themselves ensure the

accuracy of the copy and copies compared with such copies are considered good in law

as secondary evidence.

c. Copies made from the Original or Compared with The Original (Clause 3): As per

Clause 3, the copy must be shown either to have been made from the original or to have

been compared with the original if it is to be admissible as secondary evidence.

For example, if you take a screenshot of a photograph of a document, it would be the

copy of a copy. Now for the screenshot to be admissible, it must be compared with the

original. It becomes irrelevant that the photograph which you took the screenshot of was

compared with the original.13 In cases where the original document is lost, a copy of the

copy of it, without being compared with the original would not be considered as

secondary evidence.

The Patna High Court in the case of Harijiwan Sahu v. Jairam Sahu laid down the rule

for pertaining to admission of copy of a copy as secondary evidence and held that even

if the copy from which the subsequent copy is compared to the original it becomes

immaterial, the subsequent copy must itself be compared with the original for it to be

good in law.

12 R.M. Pandey v. Automobile Products of India, 1956 B 115. 13 Ram Prasad v. Raghunandan Prasad, 7 A 738

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Further, the copy to be given must be proved to be the correct copy by someone who can

attest to it being the true copy. Such a copy, sworn to be true by a witness line by line is

called an examined copy.

d. Counterparts of Documents (Clause (4)): Counterparts of a document act a primary

evidence against the party executing them but act as secondary evidence against the party

not executing them.14

e. Oral Accounts (CLAUSE (5)): As per the last clause of Section 63, oral account of the

contents of the document by a witness who has himself seen it, is considered good in law

as secondary evidence.

For example, in case the original will is lost, its contents can be authenticated by the oral

accounts of the witnesses who attested it.

However, in cases where the witness has only seen the documents and heard someone

else read it out to them but have not themselves read it would not count as secondary

evidence under this clause. Therefore, an illiterate’s evidence, be it an uneducated

individual or an individual who could not read the document due to its language, is not

considered as secondary evidence. Oral accounts of the contents of a document must be

given by someone who has read the document so as to be able to speak de visu to its

contents.

EXAMPLES OF SECONDARY EVIDENCE

Section 63 mentions five kinds of secondary evidence. Clauses (1), (2) and (3) refer to copies

of documents; clause (4) refers to counterparts of documents, and clause (5) refers to oral

accounts of the contents of documents.

We have covered the different types of secondary evidence under those aforementioned heads;

however, some additional ones are listed as follows:

14 Baidya Nath Dutt v. Kaminikant Gupta, 6 Cr LJ 572.

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i. Newspaper reports are a type of hearsay secondary evidence which cannot be relied

upon unless proved by evidence. The alleged facts have to be proved independently

of the newspaper report.

The Hon’ble SC in the case of SA Khan v. Ch. Bhajan Lal15, observed that evidence

has to be let in proof of the statement of facts contained in the newspaper report. Even

absence of denial by the maker of the statement will not absolve the applicant from

discharging its obligation.

Furthermore, in Khilumal v. Arjun Das16, the Court held that newspaper reports are

mere hearsay and cannot in law be relied upon as the proof of speech.

ii. Judgments: Many at times, judgements contain a lot of ancillary information as to the

documents submitted by the parties, its contents and otherwise. In such cases, a

judgement can act as secondary evidence but in a limited sense.

A recital of the terms of an application which is lost is good as secondary evidence

but not the abstract of the deposition given by a witness.17

iii. Photographs: The admissibility of photograph as secondary evidence is done on oath,

to the court’s satisfaction, either by the photographer or by the one who can speak of

their accuracy. X-ray photographs are also admissible as to determine the extent of a

physical injury or disease by establishing that such x-ray is of the person injured or

diseased.

iv. Tape Record: If a statement is relevant, an accurate tape recording of it would also be

considered relevant. For this, the place, time, and the accuracy must be established as

also the voices’ authenticity. The Court must be satisfied beyond reasonable doubt as to

the veracity of the recordings.

15 SA Khan v. Ch. Bhajan Lal, AIR 1993 SC 1348 16 Khilumal v. Arjun Das, ILR 1959 Raj 524 17 Kundan Bibi v. Magan Lal, 139 IC 718: 1932 A 710

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In Ziyauddin v. Brijmohan,18 the Supreme Court held a tape record is a document

which is no different from a photograph. However, conditions for its admissibility

may be different.

The Hon’ble Supreme Court in the case of Yusufalli Esmail Nagree v. State of

Maharashtra,19 observed that because of the nature of such things, the ability to

easily tamper with them, their authenticity must be proved beyond reasonable doubt

to be admissible as secondary evidence. The Court laid down the following

conditions:

a. Identification of voice of the speaker. In case where it is denied by the

speaker, it will require very strict proof to determine whether or not it was

really his voice.

b. Either by way of direct or circumstantial evidence, the accuracy of the

tape- recorded statement must be established.

c. It must be examined for any possibility of tampering.

d. Voice of the speaker must be clear, audible, and not lost or distorted.

v. Birth Certificate: In case where the Birth Certificate is lost/unavailable, a similar

certificate issued by the principal pf the school is considered a good secondary evidence.

Even voters list is considered as secondary evidence in such regards.20

vi. Un-Probated Will: The Hon’ble Supreme Court in the case of Comr. v. Mohan

Krishna Abrol 21 held that except for in probate proceedings, an un-probated will is

admissible in evidence for collateral purposes.

18 Ziyauddin v. Brijmohan, AIR 1975 SC 1788. 19 Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147 20 Mustafa v. Khurshida, AIR 2006 Raj. 31 21 CIVIL APPEAL No.1265 OF 1999

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vii. Call Records: Printouts from the servers/computers of the cellular company and

certified by a responsible officer of that company can be led in evidence through a

witness who can attest to the authenticity of it.22

IS SECTION 63 EXHAUSTIVE?

The Hon’ble Supreme Court in Smt. J. Yashoda v. Smt. K. Shobha23, explicitly held that the

definition under Section 63 is exhaustive, as indicated by the use of the phrase, “means and

includes.”

However, Section 63, opening with the words "secondary evidence means and includes",

contains five clauses thereunder. The use of the word "means" conveys the impression that

"secondary evidence" must fall within any one of the five clauses of the section, but there

are two species of evidence which, though not enumerated in section 63, must be treated as

secondary evidence, the species of evidence mentioned in section 65(b) and (g)—briefly,

written admission of the contents of documents and general result of collection of

documents, respectively.

The Madras High Court in Kalliani Amma v. Narayanan24, observed that,

“…section 63 is not exhaustive of the categories of secondary evidence. This is particularly so,

since "written admissions" were in issue, and the same has not been mentioned as "secondary

evidence" in any of the clauses of section 63.”

This case holds that written admissions fell within the concept of "secondary evidence"

though not mentioned in section 63.

If the above view, namely, that clauses (b) and (g) of section 65 deal with secondary

evidence, is correct, the following clauses could be added to section 63.

“ 6 written admissions of the existence, condition, or contents of the original.

7the general result of the originals, where they consist of numerous accounts or other

documents which cannot be conveniently examined in court, as stated by any person who has

22 State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 23 Smt. J. Yashoda v. Smt. K. Shobha, AIR 2007 SC 1721 24 Kalliani Amma v. Narayanan, AIR 1915 Mad 962.

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examined them and who is skilled in the examination of such documents."

Further, the words "and includes" should be deleted from the opening portion. Such was also

forwarded by the Law Commission in its Sixty-ninth Report of the Commission on the Indian

Evidence Act, 1872.

CONCLUSION

Secondary Evidence is the evidence furnished in place of primary evidence when a proper

explanation of the latter’s absence is given. To furnish secondary evidence, not only the

genuineness of it but also the veracity of its contents must be proved.

Being the exception to the best evidence rule, secondary evidence is of lesser value in the eyes

of law than primary evidence. There are a number of cases wherein it becomes impossible to

furnish the primary, and the party has to rely on secondary evidence to further its cause. A

varied kind of secondary evidence are already accepted by the Courts after due procedure.

The courts over time have made it less cumbersome to adduce secondary evidence. As recently

as in March of 2020, the Hon’ble Supreme Court cleared the position that secondary evidence

can be produced without the need for application.24 Some courts have even started to ponder

upon the question of exhaustiveness of Section 63 and deliberating whether the phrase, “means

and includes” should be altered with as suggested by the 69th Law Commission Report.

Secondary Evidence, though of lesser evidentiary value, is of far more prominence in today’s

time, especially with the advent of quick access to technologies such a photocopy, photography

etc. More often than not, parties would like access to originals of key documents they intend to

rely upon because of a variety of reasons ranging from them being plainly lost to stolen and

sabotaged. Thus, in my view, the jurisprudence of Secondary Evidence is more important and

intriguing of the two kinds of evidence.

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