Leading Judgment on pre-conditions for leading secondary evidence

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 13361 of 2015 (Arising out of SLP (C) No. 29621 of 2014)

Decided On: 06.11.2015

 Rakesh Mohindra Vs. Anita Beri and Ors.

Hon'ble Judges/Coram:M. Yusuf Eqbal and C. Nagappan, JJ.

 Citation: 2015(6)ABR822,2016 (114) ALR 253,(2016)16 SC
483.

The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.[17]

It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.[22]

 After considering the entire facts of the case and the evidence adduced by the Appellant for the purpose of admission of the secondary evidence, the Court is of the view that all efforts have been taken for the purpose of leading secondary evidence. The trial court has noticed that the photocopy of the Exhibit DW-2/B came from the custody of DEO Ambala and the witness, who brought the record, has been examined as witness. In that view of the matter, there is compliance of the provisions of Section 65 of the Evidence Act. Merely because the signatures in some of the documents were not legible and visible that cannot be a ground to reject the secondary evidence. In Court's view, the trial court correctly appreciated the efforts taken by the Appellant for the purpose of leading secondary evidence.[24]

 However, the Court makes it clear that mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.[26]

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When photostat copies of letters are admissible in evidence?

On the whole, we think that if the court is satisfied that there is no trick photography and the photograph is above suspicion, the photograph can be received in evidence. It is, of course, always admissible to prove the contents of the document, but subject to the safeguards indicated, to prove the authorship. This is all the more so in India under s. 10 of the Evidence Act to prove participation in a conspiracy. Detection and proof of crime will be rendered not only not easy but sometimes impossible if conspirators begin to correspond through photographs of letters instead of originals, Many conspiracies will then remain unproved because one of the usual methods is to intercept a letter, take its photograph and then to send it on and wait for the reply. But evidence of photographs to prove writing or handwriting can only be received if the original cannot be obtained and the photographic reproduction is faithful and not faked or false. In the present case no such suggestion exists and the originals having been suppressed by the accused, were not available. The evidence of photographs as to the contents and as to handwriting was receivable. 639, Regarding the specimen writing in the letter Z 217, with which, the impugned writings were compared, we think the letter must be treated as genuine for the purpose of comparison of handwriting. The letter was written on June 1, 1960 from Bombay to one Begraj Choraria at Bidsedar. It was admittedly recovered. from Balchand appellant's ancestral house. It was addressed to Dadaji Sahib and it contains numerous references to domestic matters which are usually written in such letters. Corroboration of some of the things said there was available from other sources. It is impossible to think that such a letter could have been forged and planted at Bidsedar in the ancestral home. The letters in BC series 1-45 were rightly compared with it to determine Balchand's handwriting.

Supreme Court of India

Laxmipat Choraria And Ors vs State Of Maharashtra on 14 December, 1967

Equivalent citations: 1968 AIR 938, 1968 SCR (2) 624,1968(70)BOMLR595, 1968CriLJ1124, 1969MhLJ153, 1969MPLJ109(SC),

Bench: Hidayatullah, M.

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How to prove photo in evidence?

 It is apropos to refer to the judgment of the Division Bench of this Court, in support of the view I have taken, in the case of Laxman Ganpati v. Anusayabai . The Division Bench in the said case was considering the proof of photo copy, negative as well as enlarged print and has considered the provisions as laid down under Sections 62 and 65 of the Evidence Act. It is held that it is only when the person who takes a photograph and develops it into a negative himself comes into the box and deposes to both those facts, that a negative becomes admissible in evidence. As far as the enlarged print is concerned, the position is still worse, for no point or enlargement can be admitted in evidence without its negative being produced and proved in the matter.

Bombay High Court

Ramdas Bhatu Chaudhary Since ... vs Anant Chunilal Kate on 27 July, 2006

Equivalent citations: 2006 (6) MhLj 571,2007(1) ALLMR313

Bench: S Deshmukh

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