Work Shop Sub : Indian Evidence Act,

Section 24 to 27 & Primary Evidence and

Secondary Evidence

Confession and its relevancy :-

Section 24, 25, 26, 27, of Indian Evidence Act, 1872
Confession have very important role in proving Criminal Cases.
Confession by an accused may be due to different reasons. Sometimes the
accused may be victimized or confess the crime to save the real culprit.
Confession may also be due to pressure, or to escape from torture and
humiliation or may be due to threat, inducement or blackmail. The Indian
Evidence Act, 1872 have provisions related to confession and its relevancy. It
is helpful to protect innocent people.

Confession by inducement, threat or promise when irrelevant in

criminal proceeding - Section 24 of Indian Evidence Act, 1872
A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the Court to have been
caused by any inducement, threat or promise, having reference to the charge
against the accused person, proceeding from a person in authority and
sufficient, in the opinion of the Court, to give the accused person grounds,
which would appear to him reasonable, for supposing that by making it he

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 would gain any advantage or avoid any evil of a temporal nature in reference
to the proceeding against him.
Confession to police officer not to be proved - Section 25 of Indian
Evidence Act,1872 No confession made to police officer shall be proved as
Against a person accused of any offence.
Confession by accused while in custody of police not to be proved against
him -

Section 26 of Indian Evidence Act 1872

No confession made by any person whilst he is in the custody of a police-
officer, unless it be made in the immediate presence of a Magistrate, shall be
proved as against such person. How much of information received from accused
may be proved -

Section 27 of Indian Evidence Act 1872

Provided that, when any fact is deposed to as discovered in consequence of

information received from a person accused of any offence, in the custody of a
police officer, so much of such information, whether it amounts to a confession
or not, as relates distinctly to the fact thereby discovered, may be proved.

Primary Evidence [Sec.62] :- means the document itself produced for

the inspection of the Court.

Explanation 1 :- Where a document is executed in several parts, each part is

primary evidence of the document. Where a document is executed in
counterpart, each counterpart being executed by one or some of the parties only,
each counterpart is primary evidence as against the parties executing it.

Explanation 2 :- Where a number of documents are all made by one uniform

process, as in the case of painting, lithography or photography, each is primary
evidence of the contents of the rest, but where they are all copies of a common
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original, they are not primary evidence of the contents of the original.

Secondary evidence [Sec.63] :- means and includes-

[1] certified copies ;
[2] copies made from the original by mechanical processes, and copies
compared with such copies;
[3] copies made from or compared with the original;

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[4] counterparts of documents as against the parties who did not execute
them;
[5] oral accounts of the contents of a document by a person who has seen it.
The correctness of certified copies will be presumed under s 79; but that of other
copies will have to be proved. This proof may be afforded by calling a witness
who can swear that he has compared the copy tendered in evidence with the
original or with what some other person read as the contents of the original and
that such is correct. Certified copies of money lenders licences are admissible in
evidence.
Types of Secondary Evidence :- There are different types of secondary
evidence. There are 17 main types of secondary evidence which areas follow :-
1. Certified copies.
2. Copies prepared by mechanical process.
3. Counter foils.
4. Photographs.
5. Xerox copy.
6. Photostat copy.
7. Carbon copy.
8. Types copy.
9. Tape records.
10. Copies made from or compared with original copy.
11. Counterparts.
12. Oral accounts.
13. Registration copy.
14. Unprobated will.
15. Age certificate.
16. Voters list.
17. Newspaper report.

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In Smt. J.Yashoda Vs. Smt. K. Shobha AIR2007SC1721,

2007(3)ALLMR(SC)823 the Hon'ble Apex 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.

In H. Siddiqui (Dead) by Lrs. .vs. A. Ramalingam (2011) 4SCC 240,

it was held that though the said provision permits the parties to adduce
secondary evidence, yet such a course is subject to large number of limitations.
In a case where the original documents are not produced at any time, nor has any
factual foundation been laid for giving secondary evidence, it is not permissible
for the Court to allow a party to adduce secondary evidence. Thus, secondary
evidence relating to the contents of document is inadmissible, until the
non-production of the original is accounted for, so as to bring it within one or
other of the cases provided for in the section. The secondary evidence must be
authenticated by foundational evidence that alleged copy is in fact a true copy of
the original. It has been further held in this case that mere admission of a
document in evidence does not amounts to its proof. Therefore, it is the
obligation of the Court to decide the question of admissibility of a document in
secondary evidence before making endorsement thereon.
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1] Where the original is in possession of adversary or out of reach.

[2] When the existence, condition or contents of the original is admitted in
writing by the person against whom it has to be proved.
[3] When the original had been lost or destroyed.
[4] When the original is not easily movable. Example bulky documents.
[5] When the original is a public document within the meaning of Section 74
of the Evidence Act.
[6] When the original consist of numerous accounts or other documents.
[7] Where the original is a document of which the evidence Act permits
certified copies to be given in evidence.

Thus this Section reads merely with the foundations that has to be laid
for the reception of secondary evidence. Unless a case falls within any one of
the spheres of Section 65 secondary evidence is not admissible. When the
primary evidence is not available then only the secondary evidence is allowed
and secondary evidence may be given when the original is in the possession or
powers of opposite party or of a person who is out of reach of, or not subject to
the process of the court or of any person legally bound to produce it and when
such person does not produce it after notice to produce. When the existence
condition or contents of the original have been proved to be admitted in writing
by the person against whom it is proved or by his representatives in interest the
secondary evidence is allowed.

Procedure for recording Evidence before appellate court :-

Either in code of Civil Procedure or Criminal Procedure no specific or
separate procedure of recording evidence is given. Therefore, court has to record
follow the general procedure for recording of evidence as if it is evidence in
trial. So also no separate procedure for proof of document is given to be
followed by appellate court. While permitting additional evidence in civil or
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criminal proceeding, if occasion arises to prove document by Secondary

Evidence, then court has to follow the provisions of Section 63 and 65 of the Act
in Chapter V of the Act read with provisions in Code of Civil Procedure relating
to allowing additional evidence.

In the matter of The State of Maharashtra ..Vs.. Krishnaawatar

Daulatsingh Madan reported in MANU/MH/0294/2012 Hon'ble Bombay
High court held that, " The truth of the contents of the document, even prima
facie, cannot be proved by merely producing the document for the inspection of
the Court, what it states can be so established. The writer of a document is
required to depose to the truth of its contents. Section 67 of the Act requires the
proof of the handwriting or signature upon a document".

Hon'ble the Supreme Court in the cases of Deoman Upadhyaya

(supra) as well as
In the case of State of Maharashtra Vs. Damu reported in(25 of
32) (2000)6 SCC 269; (MANU/SC/0299/2000) held that
Admissibility of the information given by an accused in custody under
Section 27 of the Evidence Act is based on the doctrine of “confirmation by
subsequent events”. The Section was given an expansive meaning in Damu’s
case in the following words:
The basic idea embedded in Section 27 of the Evidence Act is the doctrine
of 'confirmation by subsequent events. The doctrine is founded on the
principle that if any fact is discovered in a search made on the strength of any
information obtained from a prisoner, such a discovery is a guarantee that the
information supplied by the prisoner is true. The information might be
confessional or non-inculcator in nature, but if it results in discovery of a fact it
comes a reliable information.Hence the legislature permitted such information to

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be used as evidence by restricting the admissible portion to the minimum. It is

now well-settled that recovery of an object is not discovery of a fact as
envisaged in the section. The decision of Privy Council in Pullukurn Kottayya
v. Emperor AIR 1947 PC 67 as the most quoted authority for supporting the
interpretation that the "fact discovered" envisaged in the Section embraces the
lace from whichthe object was produced, the knowledge of the accused as
to it, but the information given must relate distinctly to that effect.” In view of
the fact that the information becomes admissible only to the extent of the part
eading to the discovery of a fact, the subsequent confirmation gives a guarantee
about the sanctity of such information. The facts discovered should be such
which are in exclusive knowledge of the accused and none else. If the
Investigating Officer, after recording information under Section 27 of the
evidence Act from an accused in his custody, recovers some incriminating
article from an open place accessible to all(26 of 32) and sundry, the
information and the discovery would loose significance. Likewise, if the fact is
covered is known to the Investigating Officer in advance, then the discovery
made in furtherance of the subsequent information recorded under Section 27 at
the instance of the accused would be inconsequential.
The Hon'ble Supreme Court in the case of D.K.Basu Vs. State of
West Bengal reported in (1997)1 SCC 416; (MANU/SC/0157/1997), gave
numerous directions to be followed as preventive measures in all cases of arrest
and or detention. The direction at Sr.No.10 of the said judgment is that the
arrestee may be permitted to meet his lawyer during investigation though not
throughout the investigation. The entire endeavour of the learned counsel, who
argued in favour of the proposition that witnesses should be kept present to
attest the information memo prepared under Section 27 of the Evidence Act, was
based on the perception that the Investigating Officer may indulge into use of
force and third degree methods for extracting the confession. The directions
given by the Hon'ble Supreme Court in D.K.Basu’s Judgment (supra) and the
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consequent amendments brought around in the Cr.P.C. particularly Sections 41-

A, 41-B, 41-D, 50, 50-A, 53 and 54 are(27 of 32) sufficient to alleviate these
perceptions and apprehensions.
In the case of A. R. Antulay Vs. Ramdas Sriniwas Nayak reported in
AIR 1984 SC 718; (MANU/SC/0082/1984), the Constitution Bench of the
Hon’ble Supreme Court held that in the absence of a specific provision made in
the statute indicating that offences will have to be investigated, inquired into,
tried and otherwise dealt with according to that statute, the same will have
to be investigated, inquired into, tried and otherwise dealt with according to the
Criminal Procedure Code. In other words, Criminal Procedure Code is the
parent statute which provides for investigation, inquiry and trial of cases by
Criminal Courts of various designations and there is no provision in the
Cr.P.C. requiring attestation of the information recorded under Section 27 of the
Evidence Act by independent witnesses.
As held in HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR D.B. Criminal Leave To Appeal No. 94 / 2017 State of Rajasthan
V Mangal Singh .

Place:- Saoner
Date- 15.01.2020 ( Shri Rahul P Sonawane )
APP, Saoner