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JAI NARAIN VYAS UNIVERSITY,

JODHPUR

SUBJECT- LAW OF EVIDENCE


TOPIC: SECONDARY
EVIDENCE

SUBMITTED TO:
SUBMITTED BY: Dhanistha
meena (ba.llb)

3rd semester,
rolle no:6

ACKNOWLEDGEMENT :
I would like to express my special thanks of gratitude to my
teacher___________ as well as our DEAN_________who
gave me the golden opportunity to do this wonderful
project on the topic__________, which also helped me in
doing a lot of Research and i came to know about so many
new things
I am really thankful to them.
Secondly i would also like to thank my parents and friends
who helped me a lot in finishing this project within the
limited time.
I am making this project not only for marks but to also
increase my knowledge .
THANKS AGAIN TO ALL WHO HELPED ME.

SECONDARY EVIDENCE
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.
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.
INTRODUCTION OF SECONDARY EVIDENCE
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.

TYPES OF SECONDARY EVIDENCE AND JUDICIAL DECISIONS


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
COPY 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 ones 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;

1.a copy made from original; A


2.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 its 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.
63. Secondary Evidence secondary evidence means and include
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 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 photo
graph or machine copy of the original, is secondary evidence of the original.

COMMENTS
Admissibility
Application moved for permission to lead secondary evidence based on ground of loss of document.
Presence of document proved from the facts pleaded Allowing secondary evidence not illegal;
Sobha Rani v. Ravikumar, AIR 1999 P&H 21.
Tape-recorded statements are admissible in evidence; K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad
59. Certified copies of money lenders licences are admissible in evidence;

64. Proof of documents by primary evidence Documents must be proved by primary evidence except in the cases hereinafter mentioned.

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 1India to be given in evidence2;
(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 collections.

In cases (a), (c) and (d), any secondary evidence of the contents 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 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.

Conclusion
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.

REFRENCES:
1.www.legalserviceindia.com/article/
2.www.advocatekhoj.com
3.indiankannon.org
4.https://advocatemmmohan.wordpre
ss.com
5.wikipedia and word web
Books referred
# Law of Evidence, Ratanlal & Dhirajlal, Wadhwa
Publication Nagpur
# Law of Evidence, Dr. V. Krishnamachari, S. Gogia
& Company