Documentary Evidence (Secs. 61-90)

Documentary evidence means all documents produced for the inspection of the court. Documents are denominated as ‘dead proof,’ as distinguished from witnesses who are said to be living proofs.’ Documentary evidence is superior to oral evidence in permanence, and in many respects, in trust worthiness.

Sec. 61. Proof of contents of documents – The contents of documents may be proved either by primary or by secondary evidence. There is no third method of proving the contents of a document.

The contents need not be proved by the author of document, and can be proved by any other evidence.

Banarsi Das v Maharaja Sukhjit Singh AIR 1998 SC 179:

In the absence of the documentary evidence which could have been available, the plaintiff was not allowed to rest his case on oral evidence which was against the record produced by the defendants.

Section 3 Documentary Evidence:  The expression “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustrations: A writing is a document; Words printed, lithographed or photographed are documents, A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document.

Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318 :

The Supreme Court held that in order to prove the documents original document is to be produced. Contents of it are to be proved so also signature on the same have to be proved. When document appeals to the conscious of the Court that it is genuine, contents of the same need not be proved.

Ravichandra v. M/s. Elements Development Consultants, Bengaluru, 2018 Cri. LJ 4314 (Kar):

The Court observed that mere marking of a document cannot be said to be the proof of said document. The document has to be proved in accordance with law and the same has to be appreciated in order to ascertain the genuineness of the document with other materials available on record. In that context, both the parties would get ample opportunity to counter those documents as well to submit their arguments with reference to the evidence already recorded by the court.

Kinds of Documentary evidence: There are two kinds of Documentary Evidence.

1. Primary Evidence and
2. Secondary Evidence.

1. Primary Evidence
   Definition : Sec-62
   Primary evidence means the document itself produced for the inspection of the Court.
   Explanation 1:
   Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
   For example, in the case of a cheque, the main cheque is signed by the drawer so that it is primary evidence against him, and the counterfoil may be signed by the payee of the cheque so that it will be a primary evidence against the payee. Similar is the case of patta (executed by lessor/ landlord) and the qabuliat or muchilka (executed by lessee/ tenant).
   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; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
   Primary evidence is the best or highest evidence, or in other words, it is the kind of proof which, in the eyes of the law, affords the greatest certainty of the fact in question. Primary evidence of a transaction, evidenced by writing, is the original document itself, which should be produced in original to prove the terms of the contract, if it exists and is obtainable.
   Case Laws:
   Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC7459:
   It was submitted that execution of documents is to be proved by admissible evidence and in a case where the document is produced and signature on the document is admitted, the document has to be read in evidence.
   C. Purushothama Reddiar v. S. Perumal reported in AIR 1972 SC 608 :
   The Court held the Plaintiff had admitted the signature on the carbon copy, hence, there was no further burden on the Defendant to lead any additional evidence for proof of the contents of the carbon copy.
   Byramjee Jeejebhoy Private Ltd. v. Govindbhai A. Bhatte,  and Others, reported in 1994(1) Bom. C. R. 21114 :
   It was submitted that once the factum of the execution is proved, the document stands proved and it is wholly irrelevant whether the contents are proved or not.
   Prithi Chand vs. State of Himachal Pradesh, 1989 (1) SCC 432
   The Court held that since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act. Therefore, the medical certificate was clearly admissible in evidence.
   Md. Yakub Ali vs. State of Tripura, 2004 Cri. LJ 3315 (Guj) :
   Where the post-mortem report is to be prepared in triplicate by pen-carbon and in the instant case also, the post-mortem report was prepared by pen-carbon in one uniform process and as such, in view of the provisions of Section 62 of the Evidence Act, such carbon copy is primary evidence.
   Surinder Dogra vs. State, 2019 Cri. LJ 3580 (J&K):
   The Court held that documents prepared under the uniform process of either printing or cyclostyle or lithography cannot be mere copies in strict legal sense of the term, in fact, they are all counterpart originals and each of such documents is primary evidence of its contents under Sections 45 and 47 of the Evidence Act.
2. Secondary evidence:
   Secondary Document is the document which is not original document. Secondary Evidence is an alternative source of evidence other than original documents. Secondary Evidence is that such can be given in the absence of the Primary Evidence.
   Secondary evidence means and includes—

• • • Certified copies given under the provisions hereinafter contained;
    • Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.
    • Copies made from or compared with the original;
    • Counterparts of documents as against the parties who did not execute them;
    • Oral accounts of the contents of documents given by some person who has himself seen it.
      Illustration:
      • 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.
      • A copy compared with a copy of a letter made by a 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.
      • A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but he copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
      • Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.
        Ashok v Madho Lal AIR 1975 SC 1748; Govt. of A.P. v Karri Chinna Venkata Reddy AIR 1994 SC 591:
        A Photostat copy of a document is admissible as secondary evidence if it is proved to be genuine; it has to be explained as to what were the circumstances under which the Photostat copy was preferred and who was in the possession of the original document at the time its photograph was taken. It can be permitted to be given in evidence when it is proved that the original document was in possession of adversary.
        Union of India v Nirmal Singh AIR 1987 All 83
        An uncertified photocopy of a government order cannot be given in secondary evidence. The value of Secondary evidence is not as that of primary Evidence. Giving Secondary Evidence is exception to the general rule. And notice is required to be given before giving secondary evidence.
        
        Kinds of Secondary Evidence:

1. 1. 1. 1. 1. 1. Certified Copies
               2. Copies prepared by mechanical process:
               3. Copies Made from or Compared with the Original:
               4. Counterparts of Documents:
               5. Oral Accounts of the Person about the content of a document:

1. 1. 1. 1. 1. Certified Copies: These are defined under Section 76. Section 63 declares certified copies to be permissible form of secondary evidence. S. 65(e) and S. 77 make certified copies of public document admissible in proof of contents of such documents. S. 79 raises a presumption with respect to genuineness of certified copy.
               Copies of public documents other than those mentioned in S. 76 and in S. 77 may be proved in the manner described U/s 78.
               Case Laws: 
               Manorama v. Saroj, AIR 1981 All 17
               The Court held that a photostat copy of a document is not admissible in evidence. Only certified copy is admissible.
               Suresh Banik v. State, AIR 1976 SC 1748 :
               The Court held that a photostat copy of a document is admissible as secondary evidence if it is proved to be genuine. The genuineness is to be proved either by examining the photographer or by some other evidence.
               Ashok v. Madho Lal, AIR 1975 SC 1748:
               The Court held that in case of a photo copy of a document before it is admitted in evidence it has to be explained as what were the circumstances under which the photostat copy was preferred and who was in possession of the original document at the time its photograph was taken and that would be above suspicion.
               State of Gujarat v. Bharat, 1991 Cr LJ 978 :
               The Court held that a photograph can be proved by examining the photographer and by proving the negative.
               Surinder Kaur v. Mehal Singh (2013)
               The Court elaborating guidelines observed:
               1. 1. 1. A photocopy of the original document can be allowed to be presented as secondary evidence only in the absence of the original document. 
                     2. When a photostat copy is presented as evidence, it is on the party producing it to prove that the original document existed and is lost or is in possession of the opposite party who failed to produce it. Mere assertion is not sufficient to prove it. 
                     3. After the photocopy is produced in the court as evidence, the opposite party must raise its objections regarding the non-existence of such circumstances or foundational facts at the earliest. 
                     4. When any such objections are raised, the authenticity of the copy must be determined as every copy produced from the mechanical process might not be accurate. 
                     5. Mere production of copy as the evidence does not amount to its proof. Its correctness has to be evaluated and proved independently. It has to be shown that it was made from the original document at a specific time and place. 
                     6. In instances where the photostat copy is itself suspicious, it is not to be relied upon, unless the court is satisfied that it is genuine and accurate. 
                     7. The genuineness of the copy is to be proved on oath by the person who made the copy or who can vouch for its accuracy, to the satisfaction of the court. 

1. 1. 1. 1. 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.
               
            3. Copies Made from or Compared with the Original:
               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.

1. 1. 1. 1. 4. Counterparts of Documents:
               A counterpart of document are primary evidence as against the parties executing them under section 62 and is secondary evidence as against the parties who did not execute it.

1. 1. 1. 1. 5. Oral Accounts of the Person about the content of a document:
               Oral accounts of a person about the content of a document must be closely examined. Not examining the informant or not presenting the report of that person is fatal and such a person’s report cannot be relied upon in such a case.  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 thereof. An illiterate person cannot be one who has seen the document within the meaning of the section.
               Pudai Singh v. Brij Mangai,
               Allahabad High Court 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 High Court  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.

When Secondary Evidence is Admissible ?

 Section 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 –

1. 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 or not subject to the process of the Court, or of any person legally bound to produce it, and when, after the notice.
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;
3. When the original has been destroyed or lost, or when the party offering evidence of its contents cannot produce it in reasonable time.
4. When the original is of such a nature as not to be easily movable;
5. When the original is a public document within the meaning of Sec-74;
6. When the original is a document of which a certified copy is permitted to be given in evidence;
7. 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 collection.

Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Essentially, secondary evidence is evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given.

• In above cases 1, 3 and 4, any secondary evidence of the contents of the document is admissible.
• In above case 2, the written admission is admissible.
• In above cases 5 or 6, a certified copy of the document, but no other kind of secondary evidence, is admissible.
• In above case 7, 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.

Case Laws :

M.Chandra v. M. Thangamuthu, 2010 AIR SCW 6362:

The Court said that: “It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. 

The documents obtained under RTI Act can be admitted as secondary evidence, as they are obtained under a particular enactment, which fall within ambit of by “any other law in force in India”