Q.

) "The contents of document may be proved either by primary or by

secondary evidence." Discuss and explain the constitution and meaning
of primary evidence and secondary evidence. (2021,18,16)

*Difference between Primary and Secondary evidence.

~ZEESHAN AHMAD ABBASI

Primary Evidence
The expression "primary evidence" of a document is defined in section 62 of IEA.
The following four are included in the expression "primary evidence":
1. The original document itself produced for the inspection of the court.
2. Where a document is executed in several parts, each part is primary evidence
of the document.
3. Where a document is executed in counterparts, each counterpart is primary
evidence against the party signing it. For example, in the case of a cheque, the
main cheque is signed by the drawer so that it is primary evidence against him
and the counterfoil may be signed by the payee of the cheque so that it will be a
primary evidence against the payee.
4. Where a number of documents are all made by one uniform process, as, for
example, by printing, lithography or photography, each is primary evidence of
the contents of document.
The section is based upon the principle that the "best evidence in the possession
of power of the party must be produced. What the best evidence is, it must depend
upon circumstances. It is prima facie the best or has the highest evidentiary
values. The status of primary evidence is such that the law gives it supreme
importance as it has an extremely high amount of certainty. This is because it is
considered that it has very less chances of tampering. The primary evidence
should be in its original form.
Proof of documents by Primary Evidence (Sec.64)
Law requires that best available evidence to be produced. The idea of best
evidence is implicit in the Evidence Act. Evidence under the Act consists of
statements made by a witness or contained in a document. If it is a case of oral
evidence, the Act requires that only that person who has actually perceived
something by that sense, by which it is capable of perception, should make the
statement about it and no one else. If it is documentary evidence, the. Act requires
that ordinarily the original should be produced, because a copy may contain
omissions or mistakes of a deliberate or accidental nature. In other. words, if the
primary evidence is available it should be given first. In the absence of primary
evidence, the secondary evidence may be given. These principles are expressed
in Sections 60 and 64 of the Evidence Act. Section 61 is controlled by Section 64
which insists that “Document must be proved by primary evidence except in the
cases hereinafter mentioned.” So long as a document is in existence and is
available, its contents must be proved by primary evidence.
Thus, where in a property suit the original document containing the “Will” was
not brought on record and only its photocopy was brought on record, it was held
to be not admissible. A written document can only be proved by the instrument
itself, and not by any derivative proof, unless secondary evidence can be given as
under Section 65. The rule in Sections 61 and 64 applies only to proof of the
contents of documents and not to cases involving their existence or identity.
In the case of Prithi Chand vs State of Himachal Pradesh it was held that when
we look into the carbon copies, they are primary evidence of each other as they
are brought from the same source and a uniform process. But such carbon copies
cannot be considered as the primary evidence against the original document.

Secondary Evidence
Secondary evidence of a document is defined in section 63. It includes the
following :
1. Certified copies of the original document;
2. Copies which are made from the original by mechanical processes which in
themselves assure the accuracy of the copy; and copies compared with such
copies;
3. Copies made from or compared with the original;
4. Counterpart of a document is a secondary evidence against the party who did
not sign it. For example a cheque is secondary evidence against the payee, as he
only receives it, but has not signed it; but the counterfoil which he signs is primary
evidence against him;
5. Oral account of the contents of a document given by a person who has himself
seen the document.
Certified copies:
They are defined by Section 76. Section 63 declares certified copy to be
permissible form of secondary evidence. Section 65(e) and Section 77 make
certified copies of public documents admissible in proof of the contents thereof.
It is necessary to bear in mind that proof of a copy being a correct copy is no
proof of the execution and genuineness of the original. A certified copy is only
evidence of the existence, condition and contents of the original and not of its
execution.
Copies prepared by mechanical process:
This clause supposes the document from which mechanical reproduction is made
to be the original document. The copies must be made from the original by such
mechanical process as in themselves ensure the accuracy of the copy such for
example printing, lithography or photography. According to the first portion of
this clause and the second explanation to Section 62, the mechanical reproduction
is merely secondary evidence of the original document from which the
mechanical production is made. The second portion of this clause makes
admissible a copy as secondary evidence provided it was compared with the copy
mechanically produced.
Copies made from or compared with original :
This clause prescribes two alternatives. First, that it may be a copy made from
the original, or second that it must be a copy compared with the original. If either
of these two requirements is satisfied then the document would be a proper and
valid secondary evidence. This clause does not require that it must be proved that
the copies were made from the original as well as compared with the original.
Counterparts:
The counterparts of a document are secondary evidence against the person who
did not execute it while counterparts of documents are primary evidence as
against the parties executing them under Section 62, Explanation 1.
Oral accounts of the contents of the document given by person who has
himself seen it:
This clause permits proof of the contents of the document by a person “who has
himself seen it.” Thus, the oral account of the contents of a document given by a
person who has merely seen it with his own eyes, but not able to read it is not
admissible as a secondary evidence. Further, oral account given by an illiterate
person who has merely seen the document and heard it being read out by someone
else amounts to hearsay evidence and is excluded by section 60.
List is not exhaustive
The Allahabad High Court has held that Sec. 63 is not exhaustive of all the kinds
of secondary evidence. The court allowed evidence of draft notes from which the
final notice was prepared. The court said : "The scope of Sec. 63 is not restricted
to its five clauses but leaves enough scope for cases, which do not strictly fall
within any of those enumerated therein. The term 'includes' leaves some scope
for a case like the present one. The court must, however, be satisfied that the
document sought to be introduced as secondary evidence is a faithful and accurate
reproduction or draft of the final document whose copy it purports to be".
Supreme Court in Ashok Dulichand v. Madahav Lal Dube & Another held
that the appellant failed to explain as to what were the circumstances under which
the photostat copy was prepared and who was in possession of the original
document at the time its photograph was taken. Another reason of rejection of
appeal was that appellant failed to prove that he was entitled to give secondary
evidence under Section 65 of the Indian Evidence Act.
When secondary evidence can be given
The circumstances in which secondary evidence can be given are strictly
regulated by the Act. Such circumstances are listed in section 65.
In substance, the section provides that secondary evidence can be given in the
following cases :
1. When the original is shown or appears to be in the possession or power
(a) of a person against whom the document is sought to be proved,
(b) of any person out of reach of, or not subject to the process of, the court, or
(c) any person legally bound to produce it,
and although due notice has been given to him in accordance with the terms of
section 66, he does not produce it.
2. When the existence, condition or contents have been proved to be admitted in
writing by the party against whom the document is to be proved or by his
representative-in-interest.
3. When the original has been destroyed or lost, or when the party offering
evidence of its contents, cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time.
4. When the original is of such a nature as not to be easily movable.
This would include cases of bulky documents.
5. When the original is a public document within the meaning of section 74.
6. When the original is a document of which the Evidence Act or any other law
of the country permits certified copies to be given in evidence.
7. When the original consists of numerous accounts or other document which
cannot be conveniently examined in the court and the fact to be provided is the
general result of the whole collection.
Where the original assignment deed of a trade mark was lost, the court allowed
the same to be proved by means of secondary evidence. The person who was
supposed to have custody of the original sale-deed categorically stated in the
Court that it had been lost. The Court allowed certified copies to be filed.
Statement of the plaintiff that the original deed was lost showed that the original
was in existence. Secondary evidence was permitted. A mere statement that the
original has been lost or destroyed is not sufficient to attract the benefit of the
section.
Attested copy as secondary evidence:
The court in Lahanya Prova Mitra v. Purnendu Kumar Ghose held: An
attested copy was not taken to be a good secondary evidence as the person who
attested it was not called to prove the accuracy of contents of the copy.
In the same case of J. Yashoda vs K. Shobha Rani, the rule of best evidence was
established. According to this rule, as long as the higher or superior form of
evidence is within the ambit of the person or can be reached by the person till
then no inferior proof will be accepted in the court of law. Hence according to
this rule, the primary evidence will be preferred. So, in the case where the original
document (that is the primary evidence) is present, no secondary evidence will be
accepted. And if a particular party wants to present the secondary evidence, then
they must establish a proper explanation of the absence of the primary evidence
of the same.
The Hon’ble Apex Court in Chandra v. M. Thangamuthu held that “the
secondary evidence must be authenticated by foundational evidence that the
 alleged copy is in fact a true copy of the original. It should be emphasised that the
exceptions to the rule requiring primary evidence are designed to provide relief
in a case where a party is genuinely unable to produce the original through no
fault of that party.
Distinguish between Primary and Secondary Evidence
S.NO. PRIMARY EVIDENCE SECONDARY EVIDENCE

Section 62 of the Evidence Section 63 of the Evidence Act defines

1.
Act defines primary evidence. secondary evidence.

It is considered the best or

It is used in the absence of primary evidence
2. finest quality of evidence in a
and is considered as lower quality of evidence.
court of law.

The original document or

Any and/or all kinds of copies made of the
work that can be produced
original document/work as mentioned under
3. before the court of law for
Section 63, form part of the secondary
inspection can be considered
evidence.
primary evidence.

Primary evidence can be

Permission is to be sought from the court to
presented to the court
4. lead secondary evidence on the grounds of the
without serving any prior
unavailability or loss of original documents.
notice.

It has high evidentiary value

It has low evidentiary value in court as it is an
5. in the court as it is the main
alternative source of evidence.
source of evidence.

In case of loss of birth certificate, Copy of the

10th marksheet if it has Date of Birth is
Birth Certificate issued by the
6. admissible or any ID Proof i.e. Voter Card or
MCD is primary evidence.
Aadhar Card are also admissible and are
secondary evidence of the birth certificate.