What is basic concept of Primary Evidence and Secondary Evidence as per provisions of Indian Evidence Act?

 S 62 of Indian Evidence Act:-  Primary evidence.—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.

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.

 S 63 of Indian Evidence Act:- Secondary evidence.—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.

 S 64 of Indian Evidence Act Proof of documents by primary evidence.—Documents must be proved by primary evidence except in the cases hereinafter mentioned.

S 65 of Indian Evidence Act 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—

(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, 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 within the meaning of Section 74;

(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 collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document 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.

Distinction between primary evidence and secondary evidence

Primary evidence is the best or highest evidence. Secondary evidence of the contents of a written instrument cannot be given, unless there is some legal excuse for non production of the original. This is based on the principle that the best evidence of which the subject is capable ought to be produced or its absence be reasonably accounted for or explained, before secondary evidence(Which is inferior) is admitted.

The party who wishes to give secondary evidence must lay the foundation for the reception of the secondary evidence.

If foundation is not laid for secondary evidence U/S 65 of Evidence Act, the document will be inadmissible in evidence.

Detail discussion

Primary Evidence

Primary evidence, as defined in Section 62 of the Indian Evidence Act, 1872, refers to the original document or object itself that is directly related to a case or matter. It is considered the most direct and reliable form of evidence. Examples of primary evidence include:

• A handwritten contract

• A photograph of a crime scene

• A recorded audio or video conversation

Secondary Evidence

Secondary evidence, on the other hand, is a representation or copy of primary evidence. It is typically used when the original evidence is unavailable, lost, or destroyed. Examples of secondary evidence include:

• A photocopy of a contract

• A witness's testimony about a photograph

• A transcript of a recorded conversation

Admissibility of Primary and Secondary Evidence

Primary evidence is generally preferred over secondary evidence due to its directness and reliability. However, secondary evidence may be admissible in certain circumstances, such as when the original evidence is unavailable or difficult to produce.

Section 63 of the Indian Evidence Act outlines the conditions under which secondary evidence can be admitted:

1. Absence of original evidence: Secondary evidence is admissible if the original evidence is unavailable or cannot be produced without unreasonable expense, time, or labor.

2. Destruction of original evidence: If the original evidence has been destroyed or lost, secondary evidence may be admissible to prove its contents.

3. Public documents: Copies of public documents, such as government records, are admissible as secondary evidence.

Burden of Proof

The burden of proof lies with the party seeking to introduce secondary evidence. They must establish that the original evidence is unavailable or that one of the exceptions to the general rule applies.

Conclusion

Primary evidence and secondary evidence play important roles in the Indian legal system. Primary evidence is considered the most reliable form of evidence, while secondary evidence may be admissible when the original evidence is unavailable. The admissibility of secondary evidence is subject to certain conditions, and the burden of proof lies with the party seeking to introduce it.

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