Section 61 of the Indian Evidence Act says that the content of a document can be proved by two modes – primary evidence or secondary evidence. It means there is no other prescribed method by law for proving the contents of a document.
What is Primary Evidence
Section 62 of the Indian Evidence Act says that primary evidence means the original document itself. When the original document is produced before the court as evidence, then it is said to be primary evidence. It may be original property papers, original will, any accounts file, or any other such document.
It also includes:
1. If a document is executed in various parts, then each part of the document is primary evidence.
For example, the registry of a property may be done in several parts by different co-owners. Each such part of the registry shall be primary evidence.
2. If a number of documents are made by one uniform process, then each such document is primary evidence.
For example, the printing of 50 photographs at once is primary evidence. Each photo is primary. Also, the printing of a newspaper in one uniform process is primary evidence. Each copy of the newspaper is primary.
Note: Even the carbon copy of a document is admissible as primary evidence since it is made by one uniform process.
What is Secondary Evidence
Section 63 of the Indian Evidence Act provides for secondary evidence. The evidence which is not primary is secondary.
What Documents Are Secondary
1. A certified copy of an original document is its secondary evidence.
2. Copies that are made from the original with the mechanical process.
For example, a photo of an original document is secondary evidence. Also, a letter made by a copying machine from the original letter is secondary evidence.
3. Copies made from the original or compared with the original document.
For example, a copy made from a copy of the original is secondary evidence.
4. Counterpart of any document which is not signed or acknowledged by the party is secondary evidence for him.
For example, a cheque signed by the drawer is primary evidence against him, and secondary evidence for the drawee as the drawee did not sign it.
5. If a person who has himself seen the document and gives an oral account of it is secondary evidence.
For example, if any person has seen or read a will of the deceased. He may give a verbal account of the contents of the will in court.
Note: Oral account of secondary evidence is not admissible. It can be given only of the primary.
How Documents Are Proved
It is a general rule that documents are to be proved by primary evidence only, as primary evidence is original and authentic in nature. But there may be possibilities when the primary document is not available, and then secondary evidence may be given in the court. There are certain situations when secondary evidence can be brought to the court.
When Secondary Evidence Can Be Given
Section 65 of the Indian Evidence Act provides for situations when secondary evidence can be given:
1. If the original document is in possession of the person against whom such a document is to be proved, or the document is with any person who is unable to be contacted or reached then secondary evidence of the document is admissible.
2. If the party against whom such a document was to be proved gives written admission of the contents of a document, then such written admission is admissible.
3. If the document which was to be produced before court is lost or destroyed, then the secondary evidence can be given.
4. If the primary evidence which is to be produced before court is not easily feasible to move, then the secondary evidence may be given.
For example, a document as per section 3 of the Indian Evidence Act can be a caricature or inscription also. And because it is not movable, secondary evidence of it can be given.
5. If the document to be produced is a public document as per section 74, then the certified copy of such originals can be given in court.
For example, it can be any official record or act. In such a case certified copy of it is permissible.
6. If the document to be adduced is such of which the Evidence Act itself gives permission for its certified copy. Refer section 76, 77, 79, 86 of the Evidence Act.
7. If the primary evidence consists of numerous documents, which is not easy to be brought before the court, then the testimony of any skilled person can be given who has examined those documents.