DOCUMENTARY EVIDENCE

There are 167 Sections in the Indian Evidence Act, 1872. These 167 Sections are
divided into three Parts. Part-II contains Sections 56 to 100.

1. Part-II contains the provisions about "Of Proof'. Sections 56 to 100 of Part-II
are sub-divided into four Chapters, i.e., Chapter-III to Chapter-VI.
2. Chapter III explains the provisions about "Facts which need not be proved".
3. Chapter-IV, containing only two Sections, i.e., Sections 59 and 60, explains the
provisions about "Oral Evidence".
4. Chapter-V, containing a large number of Sections, i.e., Section 61 to Section
90-A, explains the provisions about "Documentary Evidence".
5. Chapter-IV, containing Sections 91 to 100, explains the provisions about "the
Exclusion of oral or documentary evidence".
 DOCUMENT
Section 3 defines a document as:
―Document‖.— ―Document‖ means any matter expressed or described upon any
substance by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording that matter.‖
{ See also Indian Penal Code (Act 45 of 1860), S. 29 and the General Clauses Act,
1897 (10 of 1897), S. 3(18)}
Illustrations
1. A writing is a document;- (General Clauses Act, 1897 (10 of 1897), S. 3(65).)
2. Words printed, lithographed or photographed are documents;- (General Clauses
Act, 1897 (10 of 1897), S. 3(65).)
3. A map or plan is a document; An inscription on a metal plate or stone is a
document;
4. A caricature is a document.
The definition of the word ―document‖ in IEA is similar to its definition in Section 29
IPC and Section 3(18), General Clauses Act, 1897. Stephen defines the term as ―any
substance having any matter expressed or described upon it by marks capable of
being read.‖ From its definition, it is clear that ―document‖ does not mean only written
papers. All such things are ―document‖ on which a person expresses his or her
opinion by writing or inscription. For example, a tree on which a particular number is
inscribed is a document.
Documentary evidence is defined in the IEA as: All documents produced for the
inspection of the court.
The purpose of producing documents is to rely upon the truth of the statements
contained therein. This involves, when a document is produced in court, the
examination of three questions: 1) Is the document genuine? 2) What are its contents?
3) Are the statements in the document true?
Suppose a letter is produced as having been written by A, and it contains a statement
that B murdered C. The three questions are: 1) Is the letter written by A? 2) What does
the letter contain? 3) Is the statement that B murdered C true?
The first and third questions can be answered by calling A, a witness. But the second
can normally be answered only by producing the letter. When the original letter is
produced, it is said that primary evidence of the contents is given. When a copy is
permitted, and such copy is produced to prove the contents of the document,
secondary evidence is said to be given of the contents.
For example, any number of newspapers saying that a cricket match was played is
not evidence in a court of law that a cricket match was played. Someone who
witnessed it must come to court and give evidence. The production of the newspaper
only proves what the newspaper contains and not that what it says is true. This
is in accordance with Sections 59 and 61 to 65.
Section 59 says:
59. Proof of facts by oral evidence.— All facts, except the contents of documents [or
electronic records], may be proved by oral evidence.
Section 61 says:
61. Proof of contents of documents.— The contents of documents may be proved
either by primary or by secondary evidence.
There are two rules connected with documentary evidence, namely:
163. Giving, as evidence, of document called for and produced on notice.—
When a party calls for a document which he has given the other party notice to produce,
and such document is produced and inspected by the party 21 calling for its production,
he is bound to give it as evidence if the party producing it requires him to do so.

Section 163 is related to production of a document before the court by one party
when the same is asked by the other party, and this provision applies to both civil and
criminal proceedings.( Pratima Chowdhury v. Kalpana Mukherjee, (2014) 4 SCC
196: (2014) 2 SCC (Civ) 504.)
 164. Using, as evidence, of document, production of which was refused on
notice.— When a party refuses to produce a document which he has had notice to
produce, he cannot afterwards use the document as evidence without the consent of the
other party or the order of the court.
Illustration A sues B on an agreement and gives B notice to produce it. At the trial,
A calls for the document and B refuses to produce it. A gives secondary evidence of its
contents. B seeks to produce the document itself to contradict the secondary evidence
given by A, or in order to show that the agreement is not stamped. He cannot do so.
 PRIMARY AND SECONDARY EVIDENCE
Sections 62 and 63 define primary and secondary evidence, respectively. Section 62
says:
62. Primary evidence.— Primary evidence 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 printing, lithography, or photography, each is primary evidence of the
contents of the rest; but where they are all copies of a common original, they are not
primary evidence of the contents of the original.
Illustration
A person is shown to have been in possession of a number of placards, all printed at
one time from one original. Any one of the placards is primary evidence of the contents
of any other, but no one of them is primary evidence of the contents of the original.
INGREDIENTS:
1. Primary evidence is the best evidence.
2. A document itself produced for the inspection of the Court is primary evidence.
3. Primary evidence, is oral account of the original evidence, i.e., or a person who saw
what happened and gives an account of it recorded be the Court, or the original
document itself or the original thing when produced in the Court. Secondary evidence
is a report or an oral account of the original evidence or a copy of a document or a
model of the original thing.
4. Where a document is executed in counterpart and each counterpart is executed by
one of the parties to the deed, each counter part is primary evidence against the party
executing it, and secondary against the other party.
5. A number of documents are prepared by one uniform process such as printing or
photography. Each is primary evidence of the contents of the other. But if they are all
copies of a common original, they are not primary evidence of the contents of the
original.
Proof of documents by primary evidence:
Sec. 64 lays down the provisions about proof of documents by primary evidence.
64. Proof of documents by primary evidence.––Documents must be proved by
primary evidence except in the cases hereinafter mentioned.
Section 64 lays down that documents must be proved by primary evidence except in
the cases hereinafter mentioned.
(a) Where a party bases an order or notification promulgated by the Government, he
must file the order or notification and the concerned G.O. for the admissibility of such
order or notification.
(b) Where a party bases a registered document for his claim, he must file that original
registered document.
(c) Whether the contents of the admitted document, it shall be proved by calling the
executor and attestors of the document.
(d) A balance sheet of a company is a third party's (Chartered Accountant's) opinion.
Without supported documents, a balance sheet becomes a hearsay evidence. It must
be supported and proved by any other fact by affidavit or like any other manner.
(e) Objection: Where a party produces a document, another party may object it. The
Court hears the objection and decides accordingly. Objection to the admissibility of the
document should be taken at the earliest stage. Objection to the mode of proof of
document is distinct from its admissibility. Objection must be raised at the trial, at the
earliest stage. In appeal, no objection is accepted. Where a document is admitted
without objection, or after objection is overruled, and such document is properly
admitted and marked as exhibit marks/numbers, the contents of the document may
not become conclusive. The adverse party has right to examine it, and cross-examine
the scriber and attestors.
(f) Correctness of the contents of the document: By mere marking of an exhibit
does not dispense with the proof of document. The contents of the document must be
proved.
 SECONDARY EVIDENCE

Section 63 defines the kinds of secondary evidence permitted by the Act, while section
65 defines the circumstances under which secondary evidence of the kinds mentioned
in section 63 becomes admissible. When the question is whether secondary evidence
of the contents of the document can or cannot be given, the question will be decided
by referring to section 65, but when the question is whether evidence sought to be
given in a particular case is or is not the right kind of secondary evidence section 63
comes into play. When no foundation is laid for the reception of secondary evidence
under sections 63 and 65, such evidence should be excluded from consideration.6 The
section is exhaustive of all kinds of secondary evidence which can be let in.7 Thus, a
translation of a Will contained in a judgment in another suit is not secondary evidence
of the contents of the Will.
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.
In Bank of Baroda, Bombay v Shree Moti Industries, Bombay, the Court
has held that the secondary evidence cannot be accepted without sufficient reason
being given for non-production of the original. The loss of original document must be
established in order to lead secondary evidence. Secondary evidence of the document
can be allowed to be led only where original is proved to have existed but was lost or
misplaced. The document unless shown to have been compared with original one,
mere copy of the document does not become secondary evidence.

Secondary evidence cannot be accepted without sufficient reason being given for non-
production of the original. The loss of original document must be shown in order to
lead secondary evidence. Secondary evidence of the document can be allowed to be led
only where original is proved to have existed but was lost or misplaced. The prior
permission of the Court is required to be taken for producing secondary evidence of
the documents on the grounds that original documents were lost. When anybody
wants to lead secondary evidence, two things are required to be proved: there must be
evidence of the existence of the original documents and there must be evidence of their
loss.

Section 63 says:
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.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two
have not been
compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary
evidence of the
contents of the letter, if it is shown that the copy made by the copying machine was
made from the
original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is
secondary evidence; but the copy not so compared is not secondary evidence of the
original, although the copy from which it was transcribed was compared with the
original.
(d) Neither an oral account of a copy compared with the original, nor an oral account
of a photograph or machine-copy of the original, is secondary evidence of the original.
65. Cases in which secondary evidence relating to documents may be given.––
Secondary evidence may be given of the existence, condition, or contents of a
document in the following cases: ––
(a) when the original is shown or appears to be in the possession or power ––
of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66, such person does not produce it;
(b) 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 representative in
interest;
(c) 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;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or
by any other law in force in India to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot
conveniently be examined in Court, and the fact to be proved is the general result of
the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is
admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind 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 skilled in the examination of such
documents.
 ADMISSIBILITY OF ELECTRONIC RECORDS NEW PROVISIONS SCOPE:
Due to increase of information technology, a large number of facilities are reached to a
common man. Internet, cellphone, e-commerce, credit cards, t.v., fax, etc., are only a
few examples. The increasing utility of the information technology, naturally, has given
the scope to cyber crimes. With an intention to curb the cyber crimes, the Indian
Parliament enacted the Information Technology Act, 2000 (Act No. 21 of 2000). By the
said Act, Sections 65-A and 65-B have been inserted in the Indian Evidence Act, with
effect from 17-10-2000. By these amendments, the electronic records are also
considered as documents within the meaning of this Act. For the purposes of primary
evidence and secondary evidence relating to electronic records, Sections 65-A and 65-
B are put into use by the Courts, These Sections are reproduced hereunder without
any commentary, as there is no case-law accrued so far. By the wording of these two
Sections, it can be understood that if is difficult to produce the original electronic
records accrued in the computers, but the computer outputs on paper, even though
they are secondary evidence, shall be considered as the original.
65A. Special provisions as to evidence relating to electronic record.
[Inserted by Act 21 of 2000, Section 92 and Sch.II (w.e.f. 17.10.2000).]
The contents of electronic records may be proved in accordance with the provisions of
section 65B.
65B. Admissibility of electronic records.
(1) Notwithstanding anything contained in this Act, any records. information contained
in an electronic record which is printed on a paper, stored, recorded or copied in
optical or magnetic media produced by a computer (hereinafter referred to as the
computer output) shall be deemed to be also a document, if the conditions mentioned
in this section are satisfied in relation to the information and computer in question
and shall be admissible in any proceedings, without further proof or production of the
original, as evidence of any contents of the original or of any fact stated therein of
which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall
be the following, namely:-
(a)the computer output containing the information was produced by the computer
during the period over which the computer was used regularly to store or process
information for the purposes of any activities regularly carried on over that period by
the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or
of the kind from which the information so contained is derived was regularly fed into
the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating
properly or, if not, then in respect of any period in which it was not operating properly
or was out of operation during that part of the period, was not such as to affect the
electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from
such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the
purposes of any activities regularly carried on over that period as mentioned in clause
(a) of sub-section (2) was regularly performed by computers, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in
whatever order, of one or more computers and one or more combinations of
computers.
all the computers used for that purpose during that period shall be treated for the
purposes of this section as constituting a single computer; and references in this
section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of
this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the
manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic
record as may be appropriate for the purpose of showing that the electronic record was
produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section
(2) relate,
and purporting to be signed by a person occupying a responsible official position in
relation to the operation of the relevant device or the management of the relevant
activities (whichever is appropriate) shall be evidence of any matter stated in the
certificate; and for the purposes of this sub-section it shall be sufficient for a matter to
be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in
any appropriate form and whether it is so supplied directly or (with or without human
intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied
with a view to its being stored or processed for the purposes of those activities by a
computer operated otherwise than in the course of those activities, that information, if
duly supplied to that computer, shall be taken to be supplied to it in the course of
those activities;
(c) a computer output shall be taken to have been produced by a computer whether it
was produced by it directly or (with or without human intervention) by means of any
appropriate equipment.
Explanation. - For the purposes of this section any reference to information being
derived from other information shall be a reference to its being derived therefrom by
calculation, comparison or any other process.]
 PROCEDURE TO PROVE THE PRIMARY AND SECONDARY EVIDENCE
In case of proof of documents by primary evidence, Section 64 lays down that
documents must be proved by primary evidence except in the cases hereinafter
mentioned. Regarding the proving of electronic records, Section 65-B lays down
detailed provision. Section 66 narrates detailed rules as to notice to produce. Sections
67 to 73-A contain the necessary provisions explaining the ways and means for the
procedure to prove the primary and secondary evidence.
1. Section 66. Rules as to notice to produce.
2. Section 67. Proof of signature and handwriting of person alleged to have
signed or written document produced.
3. Section 67A. Proof as to electronic signature.
4. Section 68. Proof of execution of document required by law to be attested.
5. Section 69. Proof where no attesting witness found.
6. Section 70. Admission of execution by party to attested document.
7. Section 71. Proof when attesting witness denies the execution.
8. Section 72. Proof of document not required by law to be attested.
9. Section 73. Comparison of signature, writing or seal with others admitted
or proved.
10. Section 73A. Proof as to verification of digital signature.