EVIDENCE

Section 61 states that the contents of a document can be proved in two ways.
They are as follows:

1. Primary evidence- It is covered by Section 62 of the Evidence Act

and is considered the highest class of 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. The copies of a common original do
not form the part of primary evidence, where they are all made by one
uniform process. It is majorly produced before secondary evidence. In
fact, secondary evidence is presented in the absence of primary
evidence. It is the best evidence that absolutely establishes the proof of
the fact alleged. 
2. Secondary evidence- It is generally presented in the absence of
primary evidence and is not the best form of evidence. Secondary
evidence is covered under Section 63 of the Evidence Act.

What is secondary evidence in Indian Evidence Act 1872?

 Section 63 of the Indian Evidence Act, 1872 outlines the second
evidence. Secondary evidence is different without original
documents such as certified copies, Photocopy, document partners etc.
Section 63 of the Indian Evidence Act, 1872 deals with the secondary
evidence, and the secondary evidence includes –
Can a party lead secondary evidence?
 In Rakesh Mohindra v. Anita Beri: 2015AIR (SCW) 6271, it is held as
under: “It is well settled that if a party wishes to lead secondary evidence,
the Court is obliged to examine the probative value of the document
produced in the Court or their contents and decide the question of
admissibility of a document in secondary evidence.

When secondary evidence is admissible?

 Section 65 of the Evidence Act provides for seven cases where basic
evidence is admissible. This section relates to exceptions to the rule set
out in Section 64. The principle underlying that clause is that when the
original document is not available, destroyed, retained by the opposing
party, or controlled by a third party who does not produce it after
recognition, then the second evidence must agree.
 The request for production of secondary evidence should provide all the
relevant information and must be supported with the correct affidavit. It
should be noted that secondary evidence of document content may not be
accepted without the original production of the original in such a way that
it is imported in one or more of the cases provided in the case. Such a
document must be certified by someone familiar with the author’s
handwriting.

 Section 65 of the Indian Evidence Act, 1872 specifically outlines the

circumstances under which basic evidence may be admissible.

 Conditions in which secondary evidence may be given existence:

(a) Where the original is displayed or is deemed to be the owner or
power of the person to whom the document is sought, or any other
person who cannot access or is subject to the proceedings of the
Court, or any other person legally bound to produce, and where,
after the notice referred to in Section 66, that person is a
manufacturer;
(b) Where available, the original form or content has been proven to be in
writing accepted by the person to whom it was verified or by its
representative in good faith;
(c) Where the original is destroyed or lost, or where the party giving
evidence of its contents cannot, for any other reason not arising out of
automaticity or negligence, produce in due course;
(d) Where the real is so natural that it can be easily moved;
(e) Where the primitive is a public document within Section 74;
(f) Where the primary is a document in which a certified copy is
permitted by this law, or by any other law in charge of India to be
given proof;
(g) Where the original contains many accounts or other documents that
cannot be easily checked in court, and the proven fact is the general
result of all collections.
 In cases (a), (c) and (d), any secondary evidence of the documents is
admissible. In case (b), the written admission is admissible. In case (e) or
(f), a certified copy of the document, but no other type of secondary
evidence, is admissible. In case (g), evidence may be given as to the
general result of the documents by any person who has examined them,
and who is competent in the examination of such documents.
 The pre-conditions for the second leading evidence is that such original
documents could not be produced by the party relied on such documents
despite the best efforts, of failing to produce the same beyond their
means. The party seeking to present the secondary evidence must
establish the non-production of the primary evidence. Unless, of course, it
 is established that the original document is lost or destroyed or
deliberately held by the party in respect of the document it intended to
use, the second evidence in respect of that document is not accepted.
CASE LAWS
Pravin vs Ghanshyam 3
Facts of the case: The appellant filed his application on 12.07.2017 under
section 65 of the Evidence Act which gets rejected. The applicant has filed a
suit for a declaration and permanent injunction relating to the land. L. T.
Sitaram holds the ground expiring on 29.08.2013. According to Petitioner,
he made a will on 29.05.2003 in favour of LTE. Sitaram. According to the
will, after Sitaram’s death, the petitioner becomes the owner of the land and
agreed to sell his land in Parasram and Prakash. The agreement was made on
04.09.2013. The claimant is still in the land offering and the respondent is
trying to destroy the land of the applicant.
Judgment of the case:
The court has ordered to prove the application when the applicant made the
transcript by making a copy of the document and presented to the court of law.
Photocopy of the court of record has denied the petitioner’s request.
1. In the case of J Yashoda v. K Shobha Rani4, it was held that where
there was no possibility of documents being compared with originals
as the originals were with another person, the documents could not
be accepted as secondary evidence.
2. In the case of Kalyan Singh v. Smt. Chhoti and others it was held by
the Hon’ble Apex Court that correctness of certified copies referred
to in clause (1) is considered under section 79 of the Indian Evidence
Act, 1872, but that in other copies must be proved by proper
evidence. A certified copy of the registered diamond can be produced
as secondary proof if there is no original. However, in the present
case, the copy presented by the party is not a certified copy. Just a
regular copy. There is no evidence as to the content of the original
sales title. The copy presented by the party cannot therefore be
regarded as secondary evidence. The appellate court has the right
and duty to produce such evidence.
3. In the case of K. Shivalingaiah v. B.V. Chandrashekara Gowda 6,
held that certified copies of mortgage loans are admissible as
evidence.

4. For secondary evidence as regards a document to be adduced,

foundational evidence has to be given regarding why the original
document, or the primary evidence, is not produced, the Supreme
Court reiterated on Wednesday. (Jagmail Singh vs Karamjit Singh)
 Conclusion:
This Section is therefore readable and the bases must be laid in order to
accept the second evidence. Unless the case falls within one of the two
categories of Section 65 evidence, it is unacceptable. Where the first
evidence is not available then only the second admissible evidence and the
second proof may be given where the actual power or authority of the
opposing party or person is unavailable, or under process by any court
bound for reproduction and where that person is not produced after giving
notice.
Where the nature of the existence or the original content has been proved
to have been accepted in writing by the person to whom it was testified or
by his or her attorneys in interest the basic evidence is allowed.