Question 2/11: What is primary evidence?

Discuss its
scope and importance.

Ans: The Indian Evidence Act, 1872 lays down the provisions relating to evidence given in any civil
or criminal proceedings in any court. Evidence may be proof which indicates whether a belief or a
proposition is true or valid.

De nition of evidence in the Indian Evidence Act:




According to Section 3 of the Evidence Act 1872, evidence means and includes:


• All such statements which the court allows or needs to be presented before it by the witnesses
in connection to matters of fact under inquiry. These statements are termed as oral evidence.


• All such documents including any electronics record, presented before the court for inspection.
These documents are termed as documentary evidence.

It must be noted that evidence must be produced before the Court in any suit or proceeding to
prove the existence or non-existence of a fact in issue or any other fact relevant to such suit or
proceeding only.

Primary Evidence: Section 62 of the Indian Evidence Act, 1872 de nes Primary Evidence. Primary
evidence means the document itself produced for the inspection before the Court. 



For the purpose of the de nition, the section lays down two explanations which are as follows:

Explanation 1 – Where a document is executed in several parts, then each part is deemed to be
the primary evidence of the document. Furthermore, where a document is executed in
counterpart and each of such counterparts is being executed by one or more parties, then in such
case each counterpart is primary evidence as against the parties executing it.


Explanation 2 – Where a number of documents are all made by one uniform process, as in the
case of printing, lithography or photography, each is primary evidence of the contents of the rest.
However, where they are all copies of a common original, they are not primary evidence of the
contents of the original.

Prithi Chand v. State of Himachal Pradesh:



The Supreme Court laid down the rule regarding the admissibility of the carbon copy of a
document. The Court held that since the carbon copy of the medical certi cate was made by one
uniform process the same was primary evidence within the meaning of Explanation 2 to Section
62 of the Evidence Act. Hence, a carbon copy prepared under one uniform process is admissible
as primary evidence under Section 62 of the Evidence Act.

Theresa v. Special Court under A.P. Land:




The Court laid down that a printed copy obtained from an original document is not primary
evidence under Section 62 of the Indian Evidence Act, 1872, as Explanation 2 clearly lays down
that where a number of documents are all copied an original, they are not primary evidence. 



Explanation 2 can be interpreted to stipulate that when all the documents are made at the same
time by one uniform process, such as printing, cyclostyle or lithography, as they are not mere
copies in the strict legal sense of the term but are counterpart originals, then each document can
be regarded as primary evidence of the contents of the others.

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When is Primary Evidence Given?



Evidence to prove any document must be given in its best form. Section 64 of the Indian Evidence
Act, 1872 provides for the proof of documents by primary evidence. It states that documents
produced in any suit or proceeding before any Court of law must be proved by primary evidence.

Sheo Nath Prasad vs. Sarjoo Nonia and Anr:




It was laid down that when a plainti alleges a loan and les with his plaint a document which he
alleges to be a promissory note and it is found to be unstamped or insu ciently stamped, there
can be no proof of the contents of the document, including the fact whether it is signed by any
person or not, or if signed, the identity of the person signing it, or of the terms of the transaction
recorded in the document. In such a case, the document is not admissible as primary evidence
under Section 64 of the Indian Evidence Act.

Exceptions as to when Secondary Evidence May Be Given:


While Section 64 mandates that proof of documents must be given in the form of primary
evidence, certain exceptions are there when secondary evidence may be produced.


Section 65 lays down the cases in which secondary evidence may be given of the existence,
condition, or contents of a document:


1. When the original is shown or appears to be in possession or power of the person against
whom the document is sought to be proved, or if it is the possession 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 even after given notice as mentioned under Section 66 does not produce it. In such a
case, any secondary evidence of the contents of the document is admissible.


2. 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 a representative in the interest of such
person. In such a case, written admission is admissible.


3. When the original has been destroyed or lost, or when the party o ering evidence of its
contents cannot produce it in a reasonable time given that it is not due to his own fault or
neglect, then any secondary evidence is admissible.


4. When the original is of such a nature as not to be easily moveable, any secondary evidence of
the contents of the document is admissible.


5. When the original is a public document within the meaning of Section 74, the certi ed copy
only, and no other kind of secondary evidence is admissible.


6. When the original is a document of such nature that is a certi ed copy of the same is
permissible under this Act to be given as evidence, or by any other law in force in British India,
then the secondary evidence is admissible.


7. When the original consists 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
collection. In such a case, 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.

Types of Secondary Evidence:


Under section 76 the certi ed copies are de ned. The correctness of certi ed copies will be
presumed under section 79, but that of other copies will have to be proved. This proof might be
managed by calling a witness who can swear that he had contrasted the copy o ered in evidence
and the original, or with some other person read as the contents of the original and that such is
right. Copies are arranged by a mechanical process.

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The copies arranged by mechanical process and copies contrasted and such copies as
referenced in clause 2 of this section. In the previous case, as the duplicate is produced using the
original it guarantees precision. To this classi cation have place copies by photography,
lithography, cyclostyle, and carbon copies. 



Section 62 (2) expresses that, where some of the document is made by one uniform process, as
on account of printing, lithography, or photography, each is primary evidence of the substance of
the rest, yet where they are on the whole copies of a typical original, they are not primary
evidence of the substance of the original.

HALSBURY states:


Photographs properly veri ed on oath by a person able to speak to their accuracy are generally
admissible to prove the identity of persons, or the con guration of land as it existed at a particular
moment, or the contents of a lost document.

The counterfoils of rent receipts being admissible for the property manager are not admissible
against the occupant.

A Photostat copy of a letter is a piece of secondary evidence, and it tends to be conceded in case
the original is demonstrated to have been lost or not promptly accessible, for a given reason, it
isn't convincing proof in itself of the honesty of the contents contained in that.

A carbon copy of a signature is a piece of secondary evidence within the meaning of section 63
(2) of this Act, being a copy made by a mechanical process that ensures its correctness.

A typed copy of a supposed parcel deed without charging that the archive falls under one of the
classes identi ed in section 63 of this Act, couldn't be held to be secondary evidence.

Rakesh Mohindra v. Anita Beri:




The Apex Court has considered the scope of Section 63 and Section 65 of the Indian Evidence
Act in case of admissibility of secondary evidence. It laid down that the pre-conditions for leading
secondary evidence are that such original documents cannot be produced by the party relying
upon such documents in spite of best e orts and is unable to produce the same due to reasons
beyond their control. The party seeking to produce secondary evidence must establish for the
non-production of primary evidence.

Conclusion: 


Primary evidence is known as the best evidence, which is the best available proof of the existence
of an object because it is an actual item. It di ers from secondary evidence, which is a copy or
substitute of the original. If the primary evidence is available, then the party must produce it
before the court as proof. However, if it is not available due to loss or destruction, then secondary
evidence may be produced, provided that the reason for its unavailability is su ciently
established.

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