Primary and Secondary Evidence under the Indian Evidence Act

Overview: - The distinction between primary and secondary evidence is fundamental in proving the contents of documents in Indian law.

Primary Evidence: - Definition: The original document itself produced for inspection of the court GAFARSAB ALIAS SATI GAFAR SAB VS AMEER AHMAD - Karnataka (2005)D. Sarasu VS Jayalakshmi - Madras (2001)Mahesh Kumar Soni VS Hariom Sahu - Allahabad (2017). - Characteristics: - It is the best evidence and provides the highest certainty regarding the fact in question. - Must be produced when available; its production excludes secondary evidence GAFARSAB ALIAS SATI GAFAR SAB VS AMEER AHMAD - Karnataka (2005)Mahesh Kumar Soni VS Hariom Sahu - Allahabad (2017). - The primary evidence includes the original document or the oral account of a person who has seen the original Neeraj Dutta VS State (Govt. of N. C. T. of Delhi) - Supreme Court (2022)D. Sarasu VS Jayalakshmi - Madras (2001). - The primary evidence must be proved by admissible evidence, and mere production and marking are insufficient GAFARSAB ALIAS SATI GAFAR SAB VS AMEER AHMAD - Karnataka (2005).

Secondary Evidence: - Definition: Evidence that is admissible only when primary evidence is unavailable or its non-production is satisfactorily explained GAFARSAB ALIAS SATI GAFAR SAB VS AMEER AHMAD - Karnataka (2005)Jhadu VS Virendra Bahadur Singh - Chhattisgarh (2020). - Types (Section 63): 1. Certified copies under the law 2. Copies made from the original by mechanical processes ensuring accuracy 3. Copies made from or compared with the original 4. Counterparts of documents against parties who did not execute them 5. Oral accounts of the contents of a document by a person who has seen it - Conditions for admissibility (Section 65): - The original must be shown to be in possession or control of the person against whom proof is sought, or out of reach of the court, or not produced after notice. - The existence, condition, or contents of the original must be admitted or proved to be in possession of the adverse party. - The foundation must be laid, and the non-production of the original must be satisfactorily explained before secondary evidence can be admitted GAFARSAB ALIAS SATI GAFAR SAB VS AMEER AHMAD - Karnataka (2005)D. Sarasu VS Jayalakshmi - Madras (2001)Mahesh Kumar Soni VS Hariom Sahu - Allahabad (2017)Dinesh Debnath VS Urmila Pathak - Gauhati (2022).

Legal Principles: - The rule is that documents must be proved by primary evidence unless exceptions apply GAFARSAB ALIAS SATI GAFAR SAB VS AMEER AHMAD - Karnataka (2005)Mahesh Kumar Soni VS Hariom Sahu - Allahabad (2017)Dinesh Debnath VS Urmila Pathak - Gauhati (2022). - Secondary evidence is an exception and only admissible when primary evidence is unavailable or its non-production is justified GAFARSAB ALIAS SATI GAFAR SAB VS AMEER AHMAD - Karnataka (2005)Jhadu VS Virendra Bahadur Singh - Chhattisgarh (2020). - The court must examine whether the conditions for admitting secondary evidence are satisfied, including proof of the existence and proper handling of the original document GAFARSAB ALIAS SATI GAFAR SAB VS AMEER AHMAD - Karnataka (2005)D. Sarasu VS Jayalakshmi - Madras (2001).

Summary: - Primary evidence (the original document or direct oral testimony) is the preferred and most reliable form of proof. - Secondary evidence is admissible only under specific circumstances, primarily when the primary evidence is lost, destroyed, or out of reach, and proper foundation is laid. - Proper procedure involves establishing the non-availability of primary evidence before secondary evidence can be admitted GAFARSAB ALIAS SATI GAFAR SAB VS AMEER AHMAD - Karnataka (2005)Mahesh Kumar Soni VS Hariom Sahu - Allahabad (2017).

Recommendations: - Always seek to produce the original document as primary evidence. - If the primary evidence is unavailable, ensure the foundation for secondary evidence is properly laid, citing the relevant provisions (Sections 65 and 66). - Be aware of the types of secondary evidence permissible and the conditions for their admissibility.

This structured approach ensures compliance with the Indian Evidence Act and enhances the credibility of the evidence presented.