1) Introduction -
Evidence means the testimony, whether the oral, documentary or a real which may be legally received, in order to prove or disprove some fact in dispute. There are various kinds of evidence such as direct evidence, indirect evidence, real, personal evidence, original evidence, hearsay evidence, primary and secondary evidence, oral evidence, documentary evidence, judicial evidence, non-judicial evidence. Section 62 and 64 of the Indian Evidence Act 1872 deals with Primary Evidence while section 63, 65 and 66 of the said Act deals with Secondary Evidence.
2) What is Secondary Evidence ?
According to Section 62 of the Indian Evidence Act 1872 primary evidence means the document itself produced for the inspection of the Court. Primary evidence is that which the law requires to be given first and the Secondary evidence is that such can be given in the absence of the primary evidence.
According to Section 63 of the Indian Evidence Act, copies made and compared with the originals or photostat copies may be treated as secondary evidence.
Section 63 of the Indian Evidence Run as follows -
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.
(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.
3) Circumstances under which secondary evidence is permissible -
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(IEA), 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;
(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 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.
Difference Between Primary Evidence and Secondary Evidence