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Published : October 11, 2012 | Author : Akash Shah
Category : Criminal law | Total Views : 49125 | Rating :

Akash Shah
Akash Shah

A reproduction of, or substitute for, an original document or item of proof that is offered to establish a particular issue in a legal action.

Secondary evidence is evidence that has been reproduced from an original document or substituted for an original item. For example, a photocopy of a document or photograph would be considered secondary evidence. Another example would be an exact replica of an engine part that was contained in a motor vehicle. If the engine part is not the very same engine part that was inside the motor vehicle involved in the case, it is considered secondary evidence.

Courts prefer original, or primary, evidence. They try to avoid using secondary evidence wherever possible. This approach is called the best evidence rule. Nevertheless, a court may allow a party to introduce secondary evidence in a number of situations.

After hearing arguments by the parties, the court decides whether to admit secondary evidence after determining whether the evidence is in fact authentic or whether it would be unfair to admit the duplicate. However, when a party questions whether an asserted writing ever existed, or whether a writing, recording, or photograph is the original, the trier of fact makes the ultimate determination. The trier of fact is the judge if it is a bench trial; in a jury trial, the trier of fact is the jury.

Research Problems :
There is need to improve the method of accepting secondary evidence and court should take into consideration the secondary evidence. We will also see different case law on this basis.

Objectives of the Study:

In view of the foregoing discussion, the main purpose of the present work is to discusses importance of secondary evidence in the life of an individual. Keeping in view this aim, the researcher has analyzed the legal provision/regulatory framework dealing with Closure and concentrated on the practical aspects covering various judicial interpretations throwing a light upon the scope and application of the concept.

The researcher in the present study has attempted to highlight the object of the research. The effort has been made to evaluate the efficacy and adequacy of the existing laws in combating/ providing relief/remedy; to examine the interpretation given by the Courts.

It is not possible to make the work exhaustive as the subject is holding ever-growing importance and scope. Nevertheless a line has to be drawn somewhere for accomplishing the present research work in an effective way. Accordingly, the present work covers the analysis and social investigation regarding factual status, paradigms of law on the secondary evidence and laws dealing with ancillary issues which help to explain these areas. The work covers analysis. In addition to it, a variety of supplementary laws have been discussed at adequate and relevant places for reference purpose.

The main focus of the study is to undertake the evaluation of judgment and interpretation regarding Administrative law.

Aims :
The research project has been carried out with the following aims:
To know the value of secondary evidence
When secondary evidence are admissible.

Hypothesis :
Secondary evidence are those evidence which have less evidential value and are generally not admissible easily in court.

Scope and limitations of present research :
The nature of the present research project is a doctrinal one. The subject matter of the study being “types of secondary evidence” It would have been impracticable to carry out a non-doctrinal research project without analyzing the prevailing conditions across the India. Therefore researcher has opted for doctrinal research project.

Research Methodology applied :
The quality and value of research depends upon the proper and particular methodology adopted for the completion of research work. Looking at the vastness of the research topic - historical, doctrinal legal research methodology has been adopted. To make an authenticated study of the research topic “secondary evidence” enormous amount of study material is required. The relevant information and data necessary for its completion has been gathered from both primary as well as secondary sources available in the books, journals, periodicals, newspapers, research articles and proceedings of the seminars, conferences, conventions and annual reports on environment, websites.

S. 63 Secondary evidence means and includes –
1.Certified copies given under the provisions hereinafter contained;
2.Copies made from the original by mechanical process which in themselves ensure 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.

Clause 1 to 3 deals with copies of document
This section is exhaustive in regards to the kinds of secondary evidence admissible under the Act. The expression “means and includes in this section” make it clear that the five clauses referring to secondary evidence are exhaustive.

However secondary evidence cannot be made admissible mechanically. Sufficient reason for non-production of the original document must be shown. For e.g. tenant file Xerox copy of money receipt in his plea without giving proper reason and Xerox is authentic then it will be not admissible.

There are various type of secondary evidence which we will study in next chapter.

As we have seen in the provision of this section that there are different types of secondary evidence let us understand one by one and judicial view on it. Their 17 main type of secondary evidence which are as 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. Typed 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

1. Certified copies
Under section 76 the certified copies is defined. The correctness of certified copies will be presumed under section 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 had compared the copy tendered in evidence with the original, or with some other person read as the contents of the original and that such is correct.

A copy of the municipal record which is not issued in accordance with the requirements of the Municipal Act, is not relevant.

Certified copies of the Rules of Business made under Article 166(3) of the constitution are admissible in evidence and judicial notice has to be taken of those rules as they are statutory rules.

Under section 63 read with 79 of the Act, a certified copy of a document can be admitted without any formal proof.

In the case of a sale deed of 1896, when the party failed to prove the loss of the original but produced a certified copy, for proving the contents of the document, it was held that mere production of a certified copy would not be sufficient to justify the presumption of due execution of the original under section 90.

Where the existence of a document was admitted, it was held that, by such admission, secondary evidence furnished by a certified copy assumes the character of primary evidence.

2. Copies prepared by mechanical process
The copies prepared by mechanical process and copies compared with such copies is mentioned in clause 2 of this section. In the former case, as the copy is made from the original it ensure accuracy. To this category belong copies by photography, lithography, cyclostyle, carbon copies. Section 62 (2) states that, where a number of document are 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 content of the original.

Copies of copies kept in a registration office, when signed and sealed by registering officer, are admissible for the purpose of proving the contents of the originals.

When prosecution does not establish that the copies in question were made from originals by mechanical process, no reliance can be placed by prosecution on those copies.

Letter press copies and photographs of writings are secondary evidence

3. Counter foils
The counter foils of rent receipts being an admissible in favour of the landlord are not admissible against the tenant.

4. Photographs
HALSBURY states “ Photographs properly verified on oath by a person able to speak to their accuracy are generally admissible to prove the identity of persons, or of the configuration of land as it existed at a particular moment, or the contents of a lost document”

x-ray photographs are admissible in evidence to determine the extent of a physical injury or disease, provided it is proved that the photograph is a photograph of the person injured or diseased. The person who took the photograph should be called, unless his evidence is dispensed with by consent.

A photographic picture cannot be relied on as proof in itself of the dimensions of the depicted object, and cannot be made properly available to establish the relative proportion of such objects, except by evidence of personal knowledge or scientific experience to demonstrate accurately the facts sought to be established.

The accuracy of the photographic copies, particularly of external objects, as shown in the photograph, is to be establish on oath, to the satisfaction of the court, either by the photographer or some one who can speak to their accuracy. Before admitting a photograph, the person who took the photograph has to be examined, and he should produce the negative.

5. Xerox copy
A xerox copy of the forensic report sent by FSL after certifying the same as true copy, was held to be admissible in evidence as officer of the FSL had no interest in concocting report against the accused.

If any document is unregistered and its copy is produced in the court then it will not admissible in the court as secondary evidence.

6. Photostat copy
A Photostat copy of a letter is a piece of secondary evidence, and it can be admitted in case original is proved to have been lost or not immediately available, for given reason, it is not conclusive proof in itself of the truthfulness of the contents contained therein. Photostat copies of documents should be accepted in evidence after examining the original records as genuineness of a document was a fundamental question. The witness cn be shown and questioned as regards the Xerox copy of the document on records and the same will not amount to admission of the said document in evidence. If the witness admits the signature thereon, an objection can be raised at that time before the court that the document, being a copy, could not be exhibited. In a case where the Photostat copy of the original was produced, and there was no proof of its accuracy or of its having been compared with, or its being true reproduction of the original it was held that the Photostat copy cannot be considered as secondary evidence, as necessary foundation for its reception was not laid. A Photostat copy of a document is not admissible as secondary evidence unless proved to be genuine or the signatory accepts his signature.

7. Carbon copy
A carbon copy of a signature is a piece of secondary evidence within the meaning of section63(2) of this Act, being a copy made by a mechanical process which ensures its correctness. In a claim petition, the original insurance policy was not filed by the owner of the vehicle. He did not object to the geniuses of the printed copy of the policy giving particulars filed by the insurance company. He could not be allowed to raise objection that the same could not be read as evidence.

8. Typed copy
A typed copy of a alleged partition deed without alleging that the document falls under one of categories enumerated in section 63 of this Act, could not be held to be a secondary evidence.

9. Tape record
In the case of tape recording, which was referred to by the petitioner in support of his assertions as regards the substance of what passed between him and the chief minister of Punjab on several matters, there was no denial of the genuineness of the tape-record; and there was no assertion that the voices of the persons were not those which they purported to be . On those facts, the supreme court held that the tape-recordings can be legal evidence by way of corroborating the statement of a person who disposes that the other speaker and he carried on that conversation, or even of the statement of the person who may depose that he overheard the conversation between two persons and that what they actually stated had been tape recorded. What weight is to be attached will depend on other factors which may be established in a particular case.

In Yusuf alli osmail V. State of Maharashtra, it was held that if a statement is relevant, an accurate tape-record of the statement is also relevant and admissible; that the time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified; that, because of this facility of erasure and re-use, the evidence must be received with caution, and the court must be satisfied beyond reasonable doubt that the record has not been tampered with.

The supreme court held that the tape itself is primary and the direct evidence of the matter recorded, that it is admissible not only to corroborate under section 156 of this act but also for contradiction under section 155 (3) for testing the veracity of the witness under section 146(1), and for impeaching his impartiality, under exception (2) of section 153.

Where the voiceage denied by the alleged maker thereof, recording of a voice of a witness for comparison with, and identification of earlier recorded voice is neither expressly noe impliedly prohibited under any statute.

Statements in the tape recorded can be admitted after proving that they were accurately recorded. A previous inconsistent statement recorded on the tape recorder is admissible for the purpose of contradiction.

Where the cassette containing the speech of the returned candidate in the election, tape recorded by the police officer, was tendered in evidence by the election petitioner but how and why it came to be recorded and how the petitioner came to know about it, were not explained by him, it was not relied upon as a piece of evidence.

The supreme observed:
“the conditions for admissibility of a tape recorded statement may be stated as follows :----

1) the voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice, in other words, it manifestly follows as a logical corollary that the first condition of the admissibility of such a statement is identification of the voice of the speaker. Where the voice has been denied by the speaker, it will require very strict proof to determine whether or not it was really his voice.

2) the accuracy of the ape recorded statement has to be proved by the maker of the record by satisfactory evidence, direct or circumstantial.
3) Every possibility of tampering with or eraser of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and , therefore, inadmissible.
4) the statement must be relevant according to the rules of evidence act.
5) the recorded cassette must be carefully sealed and kept in safe or official custody.
6) The voice of the speaker must be clearly audible or not lost or distorted by other sounds or disturbances “.

A taped conversation, not compared with the voice, was not allowed as evidence.

10. Copies made from or compared with original

Copies made from the original or copies compared with the original are admissible as secondary evidence. A copy of a copy then compared with the original , would be received as secondary evidence of the original.

A copy of a certified copy of a document, which has not been compared with the original, cannot be admitted in evidence, such a copy being neither primary or secondary evidence of the contents of the original.

When a document is an accurate or true and full reproduction of the original, it would be a copy.

To admit secondary evidence, it is not sufficient to so merely that the original document is lost; the secondary evidence itself must be of the nature described in section 63.a “true copy” of a document will not be admissible under section 63, unless it is shown that it had been made from or compared with the original.

Ordinary copy of a sale deed cannot be admitted as secondary evidence but copies of sale deeds of acquired land are admissible in evidence, provided the parties to the document are examined to prove the document.

The supreme court dealing with section 14 of Arbitration Act, explained the meaning of expression “signed copy of award” and observed;”Signing means writing one’s name on some document or paper; so long as there is a signature of arbitrator or umpire on the copy of the award filed in court, and it showed that the person signing, authenticated the accuracy or correctness of the copy, the document would be a signed copy of the award; it would in such circumstance be immaterial whether the arbitrator or umpire puts down the words “certified to be true copy” before signing the copy of the award above his signature; when a document is an accurate or true and full reproduction of the reproduction of the original it would be a copy”.

Where the plaintiff in a suit for ejectment, produced a copy of the notice to quit , in proof of the fact that the notice was valid, and original was in possession of other party, and the plaintiff swore that it was a true copy of the original, it was held that it was not necessary that the scribe of the copy should be produced, and anyone who had heard the original and the copy read out to him, might swear that the contents of the two are identical and it would be admissible,

Where a handwritten copy of the adoption deed was tendered in evidence in the absence of evidence as to who made the copy , from what it was made, or whether it was compared with the original, it must be disregarded.

Section 63(3) refers to those types of copies;

a copy made from original; A

a copy compared with the original.

A copy falling under wither of the two heads will be admissible as secondary evidence.

The original dying deceleration was lost. A head constable who maintained a copy testified to its accuracy. This was allowed as corroborative evidence.

A certificate as to date of birth, on the basis of an entry in the register of a church maintained in the regular course, is not admissible. Where a copy of a report, which was typed by a typist, was not a copy typed by him was nor was it a carbon copy it was held not admissible as secondary evidence. An abstract translation or a complete translation of a document is not ‘ copy mad from and compared with the original’ within the meaning of this clause a copy of the original letter addressed by the government to the commissioner, prepared privately by a party at the time of inspection of relevant file, was held not secondary evidence of the original letter. Where a defendant did not state anywhere In his evidence or produce evidence of the document tendered is a copy made from the original, or that it was compared with the original , and when he failed to prove by evidence the conditions for invoking section 63 , it was held that the document tendered could not be receiver under section 63 (1) or (2) or (3) of the evidence act. Where a printed copy purports to bear the signature of the candidates agent in an election, it was held that the candidates signature does not establish the fact that he really signed it, when the original was not proposed by the printer and proprietor of the press where the copies were printed,

When a document was admitted without objection, it was held that omission to object to it’s omission implied that it was a true copy and it was not opened to the appellate court to consider whether the copy was properly compared with the original or not.

An entry in a deed-writers register , which contains all the essential particulars contained in the document itself and is also signed or thumb marked by the person executing the document amounts to a copy and is admissible in evidence.

Where a draft of a document is made and on that basis an original is prepared it was held that the draft cannot be treated as secondary evidence but the Kerala high court has held that a draft can be accepted in evidence if there is proof that the original has been prepared without any corrections and that it is an exact copy of the draft.

The Allahabad high court has similarly held that section 63 is not exhaustive of all types of secondary evidence. It , therefore, allowed the draft notice from which the final notice was prepared to be produced as secondary evidence.

It is not necessary for the proof of the bye-laws of a company, that the original copy of the bye-laws bearing any mark of the approval of the board of directors be produced. The bye-laws can be proved by other evidence.

11. Counterparts
Execution of a document in counterparts has already been explained while dealing with explanation 1 to section 62. counterpart of document are primary evidence as against the parties executing them under section 62 whereas under this clause they are secondary evidence as against the parties who did not execute the.

12. Oral accounts
This is last clause enable oral account of the content of a document being as secondary evidence. The oral account of the content 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 secondary evidence. The word seen in clause 5 of this section means something more than the mere sight of the document, and this contemplates evidence of a person who having seen and examined the document is in a position to give direct evidence of the content their of. An illiterate person cannot be one who has seen the document within the meaning of the section. In Pudai Singh v. Brij Mangai, allahbad HC held that as regards the letting in of secondary evidence the word seen in this section includes read over in the case of a witness who is illiterate and as such cannot himself read it, if it is read over to him, it will satisfy the requirement of the section. But this ruling was not accepted by HC oral account of the content of a document by some person who has himself sent it. Oral account given by an illiterate person will be hearsay evidence and excluded by section 60.

13. Registration copy

Where the plaintiff took step to produce original will but it was not produced by the parties in whose possession it was, it was held that the registration copy of the will which she filed, was admissible in evidence as secondary evidence.

14. Unprobated will
Unprobated will can be admitted in evidence for collateral purpose in any other proceeding apart from probate proceedings.

15. Age certificate
The age certificate issued by head master of a school on the basis of admission from was held to be not a primary but a secondary evidence.

16. Voters list
A voters list is not a primary evidence of date of birth but a secondary evidence which was held in Mustafa v. Khurshida

17. Newspaper report
A news item published in a news paper is at best a second-hand secondary evidence. A fact has to be alleged and proved and then newspaper reports can be taken in support of it but not independently.

Secondary evidence is the evidence, which may be given under certain circumstances in the absence of better evidence. The general rule is that the secondary evidence is not allowed to be given until the non production of the primary evidence. This thing is discussed in above mention types of secondary evidence whether they are admissible in which conditions.

The outcome of hypothesis is half true and remaining is not true. The secondary evidence is admissible in certain conditions only but its evidential value dose not change if admissible in court.

Books referred
# Law of Evidence, Ratanlal & Dhirajlal, Wadhwa Publication Nagpur
# Law of Evidence, Dr. V. Krishnamachari, S. Gogia & Company
# Indian Evidence Act., Justice A.K.Nandi, Kamal law house

# Ganesh Prasad v. Badri Prasad Bhola Nath, AIR 1980 All 361
# Management of the Advance Insurance Co. Ltd. v. Gurudasmal, Supdt. Of Police, AIR 1969 Del 330
# 1970 All WR (HC) 69
# Sardaran v. Sunderlal Prasad, AIR 1968 All 363
# Lakshmi kanto Roy v. Nishi kanto Roy
# Section 57 (5), Act
# Subramanya v. state 975 mad lj
# Minati Sen v. Kalipadab Ganguly AIR 1997 Cal 386
# 4th Edn. Vol. 17 (para 224), p. 158.
# US Shipping Board v. The Ship ’St. Albans, AIR 1931 PC 189
# Latino Andre v. UOI AIR 1968 Goa 132
# Arun balkrishnan Iyer v. Soni hospital
# Gulam theim v. State of Gujarat 2003 crlj 356
# British India steam navigation Co. Ltd. v. shanmugha vilas cashew industries, ILR (1947) 2 Ker 150
# Amrit Kaur v. Chamanlal AIR 1994 HP 21
# Katakam Vishwanathan v. Katakam Chima Srirama Murthy AIR 2004 AP 522
# Pratap Singh v. State of Punjab, AIR 1964 sc 72
# AIR 1968 SC 147
# Rama Reddy v. V.V. Giri AIR 1971 SC1162
# Ram Singh v. col. Ram Singh AIR 1986 sc 3
# Ram Parsad v. Raghu nandan prasad ILR (1985) 7 All 738
# Hindusthan Construction v. UOI AIR 1967 Sc 526
# Rantalal and dhirajlal, law of evidence p.824
# P.kunhammad v. Moosakutty AIR 1972 Ker 76
# Lachcho v. Dwarimal AIR 1986 All 303
# Ghure v. Chatrapal Singh
# Rantallal & Dhirajlal’s law of evidence, p.827

Review of Literature:
1) Title:- Law of Evidence
Author:- Dr. V. Krishnamachari, Publisher:- S. Gogia & Company

2) Title :- The Law of Evidence, Author:- Ratanlal & Dhirajlal
About Book :- this book is the master work on law of Evidence. It contain the detail work on the topic with much more cases and recent development on the topic by judicial decision. It contain the detail study and it is made only for the purpose of getting much more knowledge on the subject.

3) Title :- Indian Evidence Act., Author:- Justice A.K.Nandi
About Book :- This book is also having a great commentary on the subjectwith numbers of cases in it.

Authors contact info - articles The  author can be reached at: akashshah@legalserviceindia.com

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Article Comments

Posted by rajesh jain on March 30, 2017
i made register sale deed on name with my wife before it register i was made token receipt notarized document my and my friend wife name higher price but this document was distorted before register sale deed after ten year party come with xerox copy of distorted document xerox in evidence and claim on said property due to not get money as per xerox copy of distorted token amount document on ground sale deed on name my wife name and token document on my and other friend wife name can distorted copy xerox admissible in primary evidence

Posted by Gagan Sahu on October 01, 2015
Very useful for law students.

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