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.wordpress.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