CONCEPT OF PRIMARY AND SECONDARY EVIDENCE

 
 
ABSTRACT:
To prove a case in a court of law, all parties must provide evidence, must follow specific
systematized rules to guarantee that the evidence is presented within the legal parameters.
The Indian Evidence Act of 1872 governs the methods of producing the evidence in a trial
procedure, whether criminal or civil, etc. The creation of court documents is governed by the
Civil Procedure Code and the Criminal Procedure Code. Documentary subject matter should
be demonstrated either via the presentation of the document (Primary Evidence) or by the use
of secondary evidence (Secondary Evidence). In this research paper, the author will
thoroughly discuss the Indian Evidence Act of 1872 and the concepts of primary and
secondary evidence.
 
 
KEYWORDS:
Primary Evidence, Secondary Evidence, Indian Evidence Act 1872, Original Document.
 
 
INTRODUCTION:
An extensible Document is any matter transmitted or portrayed on any substance by methods
for words, characters, or markings, or by many as similar means, which are intended to be
used, or maybe used, to keep such content. A document might consist of handwritten words
on a piece of paper, published, lithographed, or photographic text, a map or plan, an
engraving on a metal plate or stone, or a parody.

The general rule is that the strongest evidence should be brought before the Court; however,
there may be circumstances when the strongest evidence can't be brought before the Court for
various reasons, for example, when the original document is misplaced or destroyed, and so
on. 
According to Section 61 of the Indian Evidence Act, 1872, the data in the papers can be
shown using either primary or secondary evidence. What comprises primary and secondary
evidence appears to be a lingering debate.[I]
According to Section 62, the most important type of evidence is primary evidence. This form
of evidence is a legal document that you must provide to the court for consideration. It is also
permitted without previous notification. You should give such evidence to the court before
the secondary evidence. In the absence of primary evidence, you can establish secondary
evidence by identifying the reason for the omission of primary evidence.
Primary evidence is the best available confirmation of the presence of an object since it is the
precise thing. On the other hand, secondary evidence is a replica or substitute for the original.
If one side has main material, that side should submit it as proof. When primary evidence is
unavailable for whatever cause, such as tragedy or total annihilation owing to the party's
fault, the person in issue may submit a trustworthy substitute if the lack of availability is
properly demonstrated.[ii]
 
As mentioned in Section 63, secondary evidence is considered a minimal sort of evidence. It
suggests that primary evidence is necessary to fill in the gaps even after providing secondary
evidence. Even if such evidence is provided instead of main evidence, the equivalent is
required. In any case, if the secondary evidence is accepted without dispute within a
reasonable time, the parties lose all rights to claim that the fact was proved by secondary
evidence instead of primary evidence. ii

 
 
RESEARCH METHODOLOGY:
The qualitative and pictorial data analysis is being carried out to better comprehend the legal
notion of primary and secondary evidence and the Indian Evidence Act 1872. The
information gathered comes mostly from well-known writers' books, journals, papers, and
websites.
 
 

REVIEW OF LITERATURE:
 Golden Rule of Law of Evidence:
“In all the cases, you must provide the best evidence to the Court.”
 
Prabhat Ranjan has released a research paper titled Addressing the Conundrum of Certificate
Necessity Under Section 65B of the Indian Evidence Act, 1872 (2020).
As it stands presently, the law provides that when digital evidence is submitted as secondary
evidence, it cannot abandon the limits imposed under Section 65B of the Evidence Act. If the
conditions of Section 65B of the Evidence Act are not fulfilled, the Evidence Act does not
foresee or authorize the presentation of an electronic version by witness testimony in India.
In creating the evidence human interference justified the obligation under section 65B
 The proof is accepted as direct, producing the result without human interference. 
The Supreme Court of India has often demonstrated that it is quick to move from an
antiquated framework to an analogy type of evidence. Several interpretations of Section 65B
demonstrate the effort made in this direction. Although the court judgment was swinging like
a pendulum in search of a solution to the current puzzle of certificate necessity. Finally, in
Arjun “Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors'', the Hon'ble Court
provided a remedy by combining the proper opinions and separating the erroneous ones.[iii]
 
Ajith Kumar and Roja K. released a paper titled The Concept of Primary and Secondary
Evidence - and its Applicability in the Case of Electronic Documents(2018).
There are a few new difficulties under the constant scrutiny of the courts while dealing with
electronic proof. Inability to basic manufacture and adulteration, and additionally its various
new sources (messages, SMS/MMS, internet-based life, site information, and so on.) and
their ambiguous legal status. Until now, electronic narrative confirmation has been lumped in
with conventional narrative confirmation and was required to be shown under Sections 61-65
of the Indian Evidence Act. It was vulnerable to indistinguishable arrangements as physical
archives were, allowing for more control and mishandling.
It is impossible to overestimate the impact of the Anvar ruling. The need for legislation to
evolve in unison with the fast use of technology in all parts of life is vital, and Sections 65A
and 65B contribute significantly in this respect. As previously stated, we must not neglect the
difficulties created by the Anvar ruling and the different criteria. Section 65B establishes
several stringent requirements that, if not met, can lead to the ineligibility of critical evidence.
While this is usually a positive thing, there are a few circumstances where such provisions
might block the whole administration of justice. This can include one-time cyberattacks in
which the criminal did not consistently input that particular data into the system in question,
did not use the computer to supply such data regularly. In this instance, 65B (4) standards
will not be satisfied.[iv]
 
“Evidence: Degrees of Secondary Evidence: Problems in Application of the So-Called
"American" Rule” (1940) is a journal published by The Michigan Law Review Association.
The presence of degrees of secondary evidence has been a concern for the courts of the
Anglo-American legal structure since 1710. Those courts that have found degrees have run
into the second challenge: determining when the secondary evidence criterion will prevent
the evidence from being admitted. The majority of decisions have relied on precedent or
comments of text writers that have been stripped of their context, and have failed to seek a
solution in terms of the reasons for which rules of evidence have been developed. This
mechanical procedure has resulted in complete ambiguity, not only when comparing
jurisdictional findings, but even while attempting to harmonize the decisions of a single
jurisdiction. 
The historical perspective separates jurisdictions between those that follow American rule
and those that follow English rule. However, assuming that there are just two distinct rules,
this method oversimplifies the situation and is wrong in inferring any geographical water-
tight divide. As a result, the author advises that this separation be abandoned in favor of an
analytical approach. Thus, those courts that have ruled that, after the lack of the original is
forgiven, any evidence that is not otherwise undesirable is admitted, and its inadequacy is a
question of weight to be evaluated by the jury, will be grouped as supporters of the "weight
of evidence" rule."[v]
 
 

Secondary evidence indicates and includes the following based on a cursory

examination:
1. Certified copies are given in compliance with the conditions listed below.
2. Copies made from an original utilizing mechanical means to verify accuracy
and compare copies to such copies.
3. Copies made from or in contradiction to the unique.
4. Document counterparts in the situation of non-signing parties.
5. Oral accounts of a document's substance are given by those who have already
seen it first-hand.[vi]
 
DIFFERENCE BETWEEN PRIMARY EVIDENCE & SECONDARY EVIDENCE

COMPARISON CHART
 
BASIS OF COMPARISON PRIMARY SECONDARY EVIDENCE
EVIDENCE
 1. Meaning The initial and valid When primary evidence is
copy of a document unavailable, secondary
presented to the Court evidence is prepared as a
for scrutiny is referred to backup but fewer significant
as primary evidence. duplicates of the document.

2. Section Section 62 of the Indian Section 63 of the Indian

Evidence Act 1872. Evidence Act 1872.

3. Source Source. Alternative source.

4. Rule To offer first-hand The usual norm is broken in

information. this case.

5. Notice It is not necessary to be It must be delivered for it to

served to present it be brought before the court.
before the court.

6. Admissibility The evidence is Only when the primary

acceptable in court on its evidence is missing is the
own. evidence acceptable.

 
Primary and Secondary Evidence: What's the  Key Difference?
We now have a thorough understanding of these two concepts. We'll now go through the
differences between primary and secondary evidence: 
 
1. Primary evidence is the original and most reliable copy of the document presented to
the court for examination. On the other hand, secondary evidence is less essential than
primary evidence and is only used to prove a point when the main evidence is
inadequate.

2. Section 62 of the Indian Evidences Act, 1872, deals with primary evidence, while
Section 63 of the Indian Evidences Act, 1872, deals with secondary evidence.

3. The basic norm is that you must present the primary evidence to the court, still,
secondary evidence must be presented to the court only in exceptional situations, as
described in Section 65 of the Act.

4. No previous notice is necessary to present the main evidence to the court. However,
prior notice is necessary to produce secondary evidence, which is governed by
Section 66 of the Act's provisions. 
 5. When it comes to evidence sources, primary evidence is the major or original source,
whereas secondary evidence is the backup. 

6. While main evidence is accepted in and of itself before the court, secondary evidence
is only permissible when primary evidence is inaccessible or unavailable.

7. Assume you visit a Photo Studio to obtain passport-size images. In that situation, all
of the copies you obtain are primary evidence since each image goes through the same
mechanical process, whereas going to a studio to get a duplicate of a photograph
taken before is secondary evidence.[vii]
 
 
Acceptability of Secondary Evidence in Certain Situations:
Although the criteria require the most compelling evidence (primary evidence) to be
presented, there are a few exceptions to the rule that can provide supplemental evidence,
outlined in Section 65 of the Indian Evidence Act, 1872. Nonetheless, the court must satisfy
the conditions set out in Section 65 of the Act even before can submit secondary proof of any
document
The court must ensure that the healthy provisions of Section 65 are not exploited. The
Supreme Court of India has held that secondary evidence must be accompanied by primary
evidence demonstrating that the purported copy is a true version of the original. Alternatives
to the standard of primary evidence are designed to grant assistance when a party is incapable
of submitting the original due to circumstances beyond their influence.
 
The following are some of the circumstances in which you may present secondary
evidence:
A. When the original is seen or appears to be in the possession or power of the individual
against whom the document is sought to be proved, or of any individual far from, or
not subject to, the Court's process, or of any individual legally bound to produce it,
and when, after the notification referenced in Section 66, such individual fails to
produce it.

B. When the existence, condition, or contents of an original are demonstrated, the person
against whom the evidence is made, or his executor in regard, must admit it in
writing.
 
C. When the original has been damaged or misplaced, or when the party providing proof
of its contents is unable to deliver it in a reasonable period for reasons other than his
negligence or default;

D. When the original is of such a kind that it cannot adequately move it; 
 
E. When the original document is a public document within the meaning of Section 74; 
 F. When the original is a document for which a certified copy is permitted to be given in
evidence under the Evidence Act or another law in force in India;

G. When the originals contain a variety of records or other papers that can't be easily
evaluated in court,  the truth to be shown is the aggregate impact of the entire
collection.
 
In scenarios (a), (c), and (d), any secondary evidence of the content of the documents is
admissible (d). In this case, official admittance is permitted (b). In the circumstances (e) and
(f), a certified copy of the documentation is admissible, but no other sort of secondary
evidence is (f). In scenario (g), an individual who has studied the papers and is qualified to
evaluate such data may testify about the overall conclusion of the sources.[viii]

Types of Secondary Evidence:

Under section 76, the phrase "certified copies" is defined. The validity of certified copies will
be inferred under section 79, whereas the correctness of other copies will have to be
demonstrated. You might gain this proof by having somebody else read the facts of the
original and confirming that they are accurate or by calling a witness who can state he
compared the copy in testimony to the original. The copies are organized using a mechanical
technique.
 
Examined the automatically arranged copies and the copies mentioned in clause 2 of this
section. Because the duplicate is created from the original in the prior situation, accuracy is
guaranteed. Photographic, lithographic, cyclostyle, and carbon replicas have all been
classified as part of this group. Section 62 (2) expresses that, where some of the document is
made by a single uniform process, such as printing, lithography, or photography, each is
primary evidence of the substance of the rest; however, where they are on the whole copies of
a typical original, they are not primary evidence of the original's substance.
 
According to HALSBURY, photographs that have been satisfactorily validated under
testimony by a person qualified to swear to their authenticity are frequently acceptable to
prove the identity of persons, the layout of land at a certain time, or the substance of a lost
record.
 
The counterfoils on rent receipts that are admissible against the property management are not
acceptable against the user.
 
Secondary evidence is a photostat copy of a letter that is typically accepted if the original is
demonstrated to have been lost or not easily accessible for whatever reason. Section 62 (2)
expresses that, where some of the document is made by a single uniform process, such as
printing, lithography, or photography, each is primary evidence of the substance of the rest;
however, where they are on the whole copies of a typical original, they are not primary
evidence of the original's substance.
 
A carbon copy of a signature is considered secondary evidence within section 63 (2) of the
Act because it is a copy produced by a mechanical means that verifies its correctness.
 
Without the need for a charge that the record relates to one of the classes stated in section 63
of this Act, cannot hold secondary evidence to be a written copy of a counterfeit parcel
transfer.
 
Electronic Records in Indian Evidence Act 1872:
Although the fact that discussing the electronic record is a different matter that requires
discussion, it is necessary to highlight the last point. In the year 2000, sections 65A and 65B
of the Act were inserted to address the admission of electronic records. Now anyone can
demonstrate the contents of electronic documents under Section 65A. Section 65B, a
comprehensive rule, outlines the method and conditions for demonstrating the contents of an
electronic document. It specifies, in general, that a certificate that conforms with Section 65
B (4) and appears to be signed by a person in a responsible official position in respect to the
operation of the required equipment must be displayed. The legislation governing electronic
records has filled in gaps in today's digital world when electronic recordings have become
crucial evidence in court.[ix]
 
 
SUGGESTION:
It is important that the law is kept up to date and enhances compatibility as government,
business, and industry move into the twenty-first century and the advanced period. A source's
content and purpose often indicate primary or secondary. A biology textbook is referred to as
a secondary source since it describes and evaluates research without bringing anything new to
it. On the other hand, if the topic is intellectual education and textbook history, textbooks
might be used as primary sources to evaluate how they have developed through time. There
are a few new difficulties under the constant scrutiny of the courts while dealing with
electronic proof. Inability to basic manufacture and adulteration, and additionally its various
new sources (messages, SMS/MMS, internet-based life, site information, and so on.) and
their ambiguous legal status. 
 

CONCLUSION:
Evidence is crucial in every case, whether a criminal or civil action since it proves a fact. The
facts can be used as evidence to make judgments and prove disputed facts. Evidence gives
additional weight to the facts presented as proof. In this way, you can use several sorts of
evidence presented by the party to prove or deny something. Evidence also helps to cut down
time spent on a given case. Parallel to how logical reasoning is utilized, it is commonly
presumed that the evidence is for court purposes in this fashion.
When the two are compared, it is clear that significant evidence will always triumph over
subsidiary evidence. In practice, secondary evidence will be allowed only if the original
evidence is inaccessible.

REFERENCES:

[I]Shambhavi Shailendra, Legal Service India E-Journal, Exploring the concept of Primary & Secondary
Evidence (Dec 10, 2021) https://www.legalserviceindia.com/legal/article-5124-exploring-the-concept-of-
primary-and-secondary-evidence.html
 
 Sakshar Law Associates, Lexology, Exploring the concept of primary and secondary evidence under Indian
[ii]

Evidence Act, (Dec 10, 2021) https://www.lexology.com/library/detail.aspx?g=ea6bba74-3506-4083-9849-

756bc506082d
 
[iii]Ranjan, P., 2020. Resolving the Conundrum of Requirement of Certificate Under Section 65B of Indian
Evidence Act, 1872. Available at SSRN 3735354. (2020)
 
[iv]Ajith Kumar & Roja K., The Concept of Primary evidence and Secondary evidence - and its applicability in
the Case of Electronic Documents, International Journal of Pure and Applied Mathematics, (Dec10 2021)
https://acadpubl.eu/hub/2018-120-5/2/103.pdf
 
[v]Klein, W.H., 1940. Evidence: Degrees of Secondary Evidence: Problems in Application of the So-Called"
American" Rule. Michigan Law Review, 38(6), pp.864-875.
 
[vi]Shambhavi Shailendra, Legal Service India E-Journal, Exploring the concept of Primary & Secondary
Evidence (Dec 10, 2021) https://www.legalserviceindia.com/legal/article-5124-exploring-the-concept-of-
primary-and-secondary-evidence.html
 
[vii]Key Differences, https://keydifferences.com/difference-between-primary-evidence-and-secondary-
evidence.html (Dec 10, 2021)
 
[viii]Maitreyan Shishir, Types of Evidence: Critical Analysis on Admissibility of Secondary Oral Evidence, 4
(2) IJLMH Page 1046 - 1055 (2021), DOI: http://doi.one/10.1732/IJLMH.26269
 
[ix]RR Legal Partners, https://rrlegal.co/blog/primary-and-secondary-evidence/ (Dec 10, 2021)
 
-        PARV BAKLIWAL
      NMIMS- SCHOOL OF LAW, BANGALORE