Secondary EvidenceSatyameva Jayate (Literally:
Truth Stands Invincible
is a mantra from the
ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted
as the national motto of India. It is inscribed in Devanagari script at the base
of the national emblem. The meaning of full mantra is as follows:
triumphs; not falsehood. Through truth the divine path is spread out by which
the sages whose desires have been completely fulfilled, reach where that supreme
treasure of Truth resides."
In the unfortunate litigation, the Court's serious Endeavour has to be to find
out where in fact the truth lies. The truth should be the guiding star in the
entire judicial process. Truth alone has to be the foundation of justice. The
entire judicial system has been created only to discern and find out the real
truth. Judges at all levels have to seriously engage themselves in the journey
of discovering the truth. That is their mandate, obligation and bounden duty.
Justice system will acquire credibility only when people will be convinced that
justice is based on the foundation of the truth. Every trial is voyage of
discovery in which truth is the quest. A judge in the Indian System has to be
regarded as failing to exercise its jurisdiction and thereby discharging its
judicial duty, if in the guise of remaining neutral, he opts to remain passive
to the proceedings before him.
He has to always keep in mind that:
is a voyage of discovery in which truth is the quest
In order to bring on
record the relevant fact, he has to play an active role; no doubt within the
bounds of the statutorily defined procedural law. The said quotes are taken from
a recent judgment by the Hon,ble Supreme Court of India and although on
different context, but would be applicable to all the trials including the
leading of evidence and supports the case law on the secondary evidence.
Evidence is important part in the legal field. There has always been an issue
with regard to proving the documents and particularly, when the original
document is not there, either it has been lost, destroyed or in possession of
other party and who despite notice of its production either denies its
possession or its authenticity.
Section 3 of Indian Evidence Act,1872 defines
the term Evidence and Document:
“Evidence” which means and includes, all
statements which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; such statements are
called oral evidence; all documents including electronic records produced for
the inspection of the court; such documents are called documentary evidence. The
word ”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.
It is trite that under the Evidence Act, 1872, facts have to be established by
primary evidence and secondary evidence is only an exception to the rule for
which foundational facts have to be established to account for the existence of
the primary evidence. The pre-conditions for leading secondary evidence are that
such original documents could not be produced by the party relying upon such
documents in spite of best efforts, unable to produce the same which is beyond
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.
Chapter V of the Indian Evidence Act,1872 deals with documentary evidence. As
per section 61 of Indian Evidence Act,1872, the contents of a document may be
proved either by primary or by secondary evidence. Section 62 of Act,1872 define
primary evidence, whereas section 63 define secondary evidence.
Section 64 mandates documents to be proved by primary evidence except in the
cases mentioned in section 65,in which secondary evidence relating to documents
may be given.
Section 61 to 66 of Indian Evidence Act,1872 reads as:61. Proof of contents of documents:
The contents of documents may be proved
either by primary or by secondary evidence.
Primary evidence means the document itself produced for the
inspection of the court.
Where a document is executed in several parts, each part is a
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
63. Secondary 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 insure the accuracy of the copy, and copies compared with such
- Copies made from or compared with the original;
- Counterparts of documents as against the parties who did not execute
- Oral accounts of the contents of a document given by some person who has
himself seen it.
64. Proof of documents by primary evidence:
Documents must be proved by primary
evidence except in the cases hereinafter mentioned.
"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:
- 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
- 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;
- 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;
- when the original is of such a nature as not to be easily movable;
- when the original is a public document within the meaning of Section 74;
- 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
- when the originals consists 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.
66. Rules as to notice to produce:
Secondary evidence of the contents of the
documents referred to in section 65, clause (a), shall not be given unless the
party proposing to give such secondary evidence has previously given to the
party in whose possession or power the document is, [or to his attorney or
pleader] such notice to produce it as is prescribed by law; and if no notice is
prescribed by law, then such notice as the Court considers reasonable under the
circumstances of the case:
Provided that such notice shall not be required in order to render secondary
evidence admissible in any of the following cases, or in any other case in which
the Court thinks fit to dispense with it:
- when the document to be proved is itself a notice
- when, from the nature of the case, the adverse party must know that he
will be required to produce it;
- when it appears or is proved that the adverse party has obtained
possession of the original by fraud or force;
- when the adverse party or his agent has the original in Court;
- when the adverse party or his agent has admitted the loss of the
- when the person in possession of the document is out of reach of, or not
subject to, the process of the Court.
The principle underlying the provisions of Section 65 of the Evidence Act is
that the best evidence that is available should be produced. The original
document is always the best and primary evidence. Section 65 provides an
alternative method of proving the contends of a document which for various
reasons cannot be produced. However, it is liable to be shown that the original
document of which secondary evidence is sought to be produced was in existence.
Besides, secondary evidence is admissible when it is shown that the primary
evidence which is the original document was in existence. The law on the subject
has undergone various changes as a result of interpretation of the provisions of
law and with regard to admissibility of evidence, required to be proved by way
of secondary evidence. The law with regard to secondary evidence, its
admissibility, procedure to be followed to prove the same are enumerated as:-.
Requirements for leading secondary evidence:
Before secondary evidence of a
document can be allowed to be led two things have to be satisfied:
- that the original document was properly stamped and admissible in
- that one of the conditions enumerated in section 65 of the Indian
Evidence Act entitling the leading of secondary evidence has been
established. 1979 PLR 409, Gurcharan
Singh v. Harbhagwan, (P&H).
No necessity of filing the application for secondary evidence:
There is no
requirement that an application is required to be filed in terms of Section
65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the
trial court but if any party to the suit has laid foundation of leading of
secondary evidence, either in the plaint or in evidence, the secondary evidence
cannot be ousted for consideration only because an application for permission to
lead secondary evidence was not filed.
In deed, there is not even a requirement
in law to file an application for reception of secondary evidence. It may be
practice in some courts and may be adopted by some counsel. It is neither
mandated under Civil Procedure Code nor is it a requirement under the Evidence
Act, All that the Evidence Act requires for production of secondary evidence is
that one or other circumstance set out under Section 65 of the Evidence Act must
2014(9) RCR(CIVIL)3009, Darshan Lal vs Gurmail Singh & others
2018(3) PLR 181, Harbans Kaur v. Beant Kaur
(Argued by the author of this
Article): 2020(2) RCR 437, Dhanpat v. Sheo Ram (SC).
Procedure for reception of secondary evidence:
In Bipin Shantilal Panchal v.
State of Gujarat,
2001 (1) RCR (Criminal) 859, the Hon'ble Apex Court has laid
down that the procedure has been set for receiving the document when the same is
objected to during trial. Practice of holding up trial on objections at the time
of tendering of documents was castigated and was held to be an 'archaic
Leading of secondary evidence would facilitate the Court to test the
admissibility, validity and genuineness of the document in terms of its
execution. If the execution of the document at the threshold of existence and
loss thereof is proved, the Court can rely upon such document in accordance with
law and in the event of failure, the Court would eschew the same.
Singh v. Hakam Singh
2009 (2) PLR 562 ,the court had an occasion to refer to the
procedure for reception of secondary evidence that nothing more needs to be done
than stating one of the grounds as required under Section 65 of the Evidence Act
for justification of reception of secondary evidence. Whether the grounds do
really exist or not could be tested in cross examination only.
The same position
has also been affirmed in S.P. Arora v. Satbir Singh
, 2009(3) Lawdigital.in 583
(P&H) : 2010 (5) RCR 350, where the Court has explained that the attempt to
de-exhibit a document that is received by the court simply does not arise. To
prove a document by way of primary or secondary evidence is a rule of evidence.
Whether the party seeking leave of the Court to lead secondary evidence
ultimately succeeds in proving the document or not is a question of fact and
depends upon evidence. It is settled rule of pleadings that a party must
disclose material facts and need not plead evidence. The material fact is loss
of document and circumstances leading to loss is a question of evidence. This
question can only be decided after providing opportunity to the party concerned
to lead secondary evidence.
To grant leave to lead secondary evidence does not
mean the document is admitted in evidence nor it is a finding of the existence
of any of the conditions indicated in Section 65 of the Evidence Act. It only
amounts to holding an enquiry regarding existence of document and its loss under
some circumstances. Failure or success to prove the existence of document or its
loss cannot be pre-determined that too without providing opportunity.
is proved or not, is to be seen after the leave is granted and the
material/evidence produced, is evaluated. Further supportive case law is 2007(4)
RCR(CIVIL) 311, Ashok Kumar Sachdeva v. Harish Malik
, (P&H, Jatinder Singh v.
Jaswant Singh and another
, 2019 (1) PLR 680., The Co-operative Society vs Suresh
Kumar & others
,2020(4) RCR(Civil) 175, M/S Devyani Food Industries Pvt Ltd vs M/S
Neelkanth Agencies, 2020(1) RCR
The leading of evidence at the stage
pursuant to the passing of the impugned order would not crystallize any
substantial right in favour of the defendants, rather the evidence led by the
parties would be tested at the threshold of admissibility, validity and
genuineness of the document in terms of execution and its nature. Later stage
would be an appropriate stage for lawful consideration of such a criteria i.e.
validity, admissibility and genuineness of the document.
Though there is no
provision in law for de-exhibiting the document already exhibited in evidence,
but the exhibition of a document, if objected to has to be answered in terms of
its admissibility at a later stage. It will be for the Court to examine and
decide as to whether it will be appropriate to rely upon such secondary evidence
or not for want of compliance of Section 65 of the Evidence Act. In case, Court
finds the secondary evidence not reliable, the Court is at liberty to eschew the
same. However, the attempt of a party for production and to exhibit the document
cannot be thrown at this threshold. 2018(3) PLR 525, Richhpal Singh v. Iqbal
, 2019(4) PLR 625, Ashok Kinger vs Pradeep Kinger
Objecting to reception of documents and forcing an adjudication by the court
before a document is assailed and exhibited. Leading of evidence cannot be
shunned merely because its probative value would not be of high order. There had
been a long time practice of objecting to reception of documents and forcing an
adjudication by the court before a document is assailed and exhibited. In the
judgment in Bipin Shantilal Panchal v. State of Gujrat
(2001) 3 SCC 1 the
Supreme Court said that the practice of objecting to the exhibition of documents
and inviting the court to give finding on relevance of document has the
inevitable consequences of holding up trial and the new practice that was to be
supplanted shall be to receive the documents subject to proof, if the court
cannot take an immediate decision on the relevance or admissibility of
The only exception could be when the document is insufficiently
stamped or a document not stamped since the bar to reception of the document is
absolute under Section 35 of the Indian Stamp Act. It stands on a different
footing, for such reception will itself take away the right of a person to
object to the admissibility of the document at a later stage by virtue of
Section 36 of the Stamp Act.
In Z. Engineers Construction Pvt. Ltd. & Anr. v.
Bipin Bihari Behera & Ors
., 2020 SCC OnLine SC 184, held that even in respect of
deficiency of stamp duty in the State of Orissa where a question arose as to
whether possession had been delivered in pursuance of a registered power of
attorney, the same was a question of fact which was required to be decided after
the evidence was led.
Secondary evidence of a primary document, which itself is inadmissible for want
of sufficient stamp duty affixed is not permissible. The law in this regard has
been settled in .AIR 1971 SC 1070, Jupudi Kesava Rao v. Pulavarthi Venkata
, followed in 2007(4) RCR(CIVIL) 548, Hariom Agrawal v. Prakash
(SC), it has been held “The Evidence Act however does not purport
to deal with the admissibility of documents in evidence which require to be
stamped under the provisions of the Indian Stamp Act.
Chapter IV of the Stamp
Act deals with instruments not duly stamped. Section 35(1) of this Act provides
Every person having by law or consent of parties authority to receive
evidence, and every person in charge of a public office, except an officer of
police, before whom any instrument, chargeable, in his opinion, with duty, is
produced or comes in the performance of his functions, shall, if it appears to
him that such instrument is not duly stamped, impound the same.
36 lays down that:
Where an instrument has been admitted in evidence, such
admission shall not, except as provided in Section 61, be called in question at
any stage of the same suit or proceeding on the ground that the instrument has
not been duly stamped.
The first limb of Section 35 clearly shuts out from
evidence any instrument chargeable with duty unless it is duly stamped. The
second limb of it which relates to acting upon the instrument will obviously
shut out any secondary evidence of such instrument, for allowing such evidence
to be let in when the original admittedly chargeable with duty was not stamped
or insufficiently stamped, would be tantamount to the document being acted upon
by the person having by law or authority to receive evidence.
Proviso (a) is
only applicable when the original instrument is actually before the Court of law
and the deficiency in stamp with penalty is paid by the party seeking to rely
upon the document. Clearly secondary evidence either by way of oral evidence of
the contents of the unstamped document or the copy of it covered by
Section 63 of the Evidence Act would not fulfil the requirements of the proviso
which enjoins upon the authority to receive nothing in evidence except the
Section 35 is not concerned with any copy of an instrument
and a party can only be allowed to rely on a document which is an instrument for
the purpose of Section 35. 'Instrument' is defined in Section 2(14) as including
every document by which any right or liability is, or purports to be created
transferred, limited, extended, extinguished or recorded. There is no scope for
inclusion of a copy of a document as an instrument for the purpose of the Stamp
If Section 35 only deals with original instruments and not copies Section
36 cannot be so interpreted as to allow secondary evidence of an instrument to
have its benefit. It is clear from the decisions of this Court and a plain
reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not
duly stamped can be impounded and when the required fee and penalty has been
paid for such instrument it can be taken in evidence under Section 35 of the
Sections 33 or 35 are not concerned with any copy of the instrument
and party can only be allowed to rely on the document which is an instrument
within the meaning of Section 2(14). There is no scope for the inclusion of the
copy of the document for the purposes of the Indian Stamp Act. Law is now no
doubt well settled that copy of the instrument cannot be validated by impounding
and this cannot be admitted as secondary evidence under the Indian Stamp Act,
Primary Document inadmissible for want of registration, its secondary evidence
is not permissible:- Once a document is inadmissible as per section 49 of the
Registration Act,1908 for want of compulsory registration under section 17 of
the Act,1908, how the secondary evidence of such a inadmissible document be
Once it is clear that the original of the Photostat document was itself
required to be registered compulsorily under Section 17(i)(b) of the
Registration Act,1908 then the question which falls for consideration is whether
a document of which original is not admissible, could be permitted to be proved
by allowing adducing of its secondary evidence and the answer is No., Shri
Balwant Singh v. Shri Mehar Singh
, AIR 1974 Punjab and Haryana 130 followed in
2002(4) RCR 830, Hari Singh v. Shish Ram, (P&H).
Mutation:-It has been held by a Full Bench decision of the Court in State of
Punjab v. Pohu and another
, 1986 R.R.R. 228 : 1986(1) P.L.R. 109 that mutation
is neither a primary nor a secondary evidence of the contents of sale deed and
is not at all adequate evidence of the amount of consideration paid in respect
of sale transaction. Therefore, the mutations enumerated above produced by the
appellant in her support have to be ruled out of evidence., relied in 1987 RRR
330, Smt.Kaushalya Devi v. Union of India, (P&H).
Marking of a document as Exhibit does not dispense with a requirement of legal
proof of such document.:-Further, a document does not become evidence per se, by
the only fact that it is assigned an exhibit number. Marking a document or
assigning an exhibit number does not dispense with a requirement of legal proof
of such document. A registration copy of the document tendered in court would
have to be supported by:
- any of the circumstances for reception of secondary evidence under
Section 65 of the Evidence Act
- the document is spoken and proved in the manner that Section 63 of
the Indian Succession Act and Section 68 of the Evidence Act require.
These are again essentially matters of
evidence which will come through only when the witnesses are put through cross
examination at the trial. Grant of permission to lead secondary evidence does
not amount to holding that the document is admitted in evidence nor does the
same amount to a finding with regard to the existence or loss of the document in
question nor does it tantamount to holding a finding of existence of any of the
conditions enumerated in section 65 of the Indian Evidence Act. Grant of leave
to lead secondary evidence only amounts to holding an enquiry regarding
existence of documents and its loss under some circumstance.
Failure or success
to prove the existence of a document cannot be pre-determined and that too
without providing opportunity, Rakesh Mohindra v. Anita Beri and others
2015 (4) RCR (Civil) 1023, 2017(3) LH 2025,
Rajbir Singh v. Ved Parkash, (Punjab And
,2020(1) RCR(CIVIL) 409, M/s Devyani Food Industries Pvt. Ltd. v. M/s
Neelkanth Agencies (P&H).
Documentary evidence by way of an electronic record:- In the absence of
certificate under Section 65B of the Indian Evidence Act, 1872, secondary
evidence in electronic mode is not admissible. Any documentary evidence by way
of an electronic record under the Evidence Act, in view of Sections 59 and 65A,
can be proved only in accordance with the procedure prescribed under
Section 65B. Section 65B deals with the admissibility of the electronic record.
The purpose of these provisions is to sanctify secondary evidence in electronic
form, generated by a computer. It may be noted that the Section starts with a
non obstante clause. Thus, notwithstanding anything contained in the Evidence
Act, any information contained in an electronic record which is printed on a
paper, stored, recorded or copied in optical or magnetic media produced by a
computer shall be deemed to be a document only if the conditions mentioned under
sub-section (2) are satisfied, without further proof or production of the
original. The very admissibility of such a document, i.e., electronic record
which is called as computer output, depends on the satisfaction of the four
conditions under Section 65B(2). Following are the specified conditions under
Section 65B(2) of the Evidence Act:
Under Section 65B(4) of the Evidence Act,
if it is desired to give a statement in any proceedings pertaining to an
electronic record, it is permissible provided the following conditions are
- The electronic record containing the information should have been
produced by the computer during the period over which the same was regularly
used to store or process information for the purpose of any activity
regularly carried on over that period by the person having lawful control
over the use of that computer
- The information of the kind contained in electronic record or of the
kind from which the information is derived was regularly fed into the
computer in the ordinary course of the said activity;
- During the material part of the said period, the computer was operating
properly and that even if it was not operating properly for some time, the
break or breaks had not affected either the record or the accuracy of its
- The information contained in the record should be a reproduction or
derivation from the information fed into the computer in the ordinary course
of the said activity.
- There must be a certificate which identifies the electronic record
containing the statement
- The certificate must describe the manner in which the electronic record
- The certificate must furnish the particulars of the device involved in
the production of that record;
- The certificate must deal with the applicable conditions mentioned under
Section 65B(2) of the Evidence Act; and
- The certificate must be signed by a person occupying a responsible
official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state
in the certificate that the same is to the best of his knowledge and belief.
Most importantly, such a certificate must accompany the electronic record like
computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc.,
pertaining to which a statement is sought to be given in evidence, when the same
is produced in evidence.
All these safeguards are taken to ensure the source and
authenticity, which are the two hallmarks pertaining to electronic record sought
to be used as evidence. Electronic records being more susceptible to tampering,
alteration, transposition, excision, etc. without such safeguards, the whole
trial based on proof of electronic records can lead to travesty of justice. An
electronic record by way of secondary evidence shall not be admitted in evidence
unless the requirements under Section 65B are satisfied.
Thus, in the case of
CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms
of Section 65B obtained at the time of taking the document, without which, the
secondary evidence pertaining to that electronic record, is inadmissible. Anwar
P.V. v. P.K.Basheer
(2014) 10 SCC 473.
When the primary document is alleged to be in possession of other
In Ashok Dulichand v. Madahavlal Dube and Anr
.,  1 SCR 246, and
it was held:
According to Clause (a) of section 65 of Indian Evidence Act,
Secondary evidence may be given of the existence, condition or contents of a
document when the original is shown or appears to be in 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 of any person legally
bound to produce it, and when, after the notice mentioned in Section 66 such
person does not produce it.
Clauses (b) to (g) of Section 65 specify some other
contingencies wherein secondary evidence relating to a document may be given. There has to be compliance of section 66 of the Evidence Act. Non
compliance of Section 66 of the Evidence Act would make the application liable
to be dismissed. Which was relied in 2019(1) PLR 680, Jatinder Singh v. Jaswant
and recently in Jagmail Singh vs Karamjit Singh
, 2020(2) RCR(Civil)
In U. Sree v. U. Srinivas
, 2013(1) R.C.R. (Civil) 883, the Hon'ble Apex Court
has commented that to permit secondary evidence, which has been destroyed by the
person in whose possession it was and whose it created an enforceable right or
an obligation, is normally not to be allowed as secondary evidence. The
secondary evidence of such nature may be tampered with and it would be against
public policy to take chance of running the risk of fraud being committed.
Sree v. U. Srinivas
, 2013 (1) RCR (Civil) 883, the Hon'ble Supreme Court has
held that mere denial by the party to produce the original document in whose
possession it is stated to be does not lay down ground for producing secondary
evidence. Section 65 of the Indian Evidence Act enumerates in which cases
secondary evidence relating to documents can be led. Section 63 (2) may be
referred to which allows a document to be admitted as secondary evidence, being
a copy prepared by mechanical process and the correctness of the Photostat
document has to be established.
In a situation where Photostat copy of a
document is produced and there is no proof of its accuracy or of it having been
compared with or it being true reproduction of the original, such document
cannot be considered as secondary evidence. In other words, Photostat copy of a
document is not admissible as secondary evidence unless proved to be genuine or
is admitted by opposite party.
Thus a Photostat copy of a document can be
produced in evidence only when it is alleged and proved that the original was in
existence and is lost or destroyed or is in possession of opposite party who
failed to produce it or in any other circumstances mentioned in section 65 of
Recently in 2020(2) RCR 510, Jagmail Singh v. Karamjit Singh (SC)
has been held that A perusal of Section 65 makes it clear that secondary
evidence may be given with regard to existence, condition or the contents of a
document when the original is shown or appears to be in possession or power
against whom the document is sought to be produced, 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 notice mentioned in Section 66 such person
does not produce it. It is a settled position of law that for secondary evidence
to be admitted foundational evidence has to be given being the reasons as to why
the original Evidence has not been furnished.
Photostat copy of a document:
- Photostat copy of a document can be allowed to be produced only in
absence of original document.
- When a party seeks to produce Photostat copy it has to lay the
foundational facts by proving that original document existed and is lost or
is in possession of opposite party who failed to produce it. Mere assertion
of the party is not sufficient to prove these foundational facts
- The objections as to non existence of such circumstances or non
existence of foundational facts must be taken at earliest by the opposite
party after the Photostat copy is tendered in evidence.
- When the opposite party raises objection as to authenticity of the
Photostat copy its authenticity has to be determined as every copy made from
a mechanical process may not be accurate. Both the requirements of clause
(2) of section 63 are to be satisfied.
- Allowing production of Photostat copy in evidence does not amount to its
Its probative value has to be proved and assessed independently.
It has to be shown that it was made from original at particular place and time.f) In cases where the Photostat copy is itself suspicious it should not be
relied upon. Unless the court is satisfied that the Photostat copy is genuine
and accurate it should not be read in evidence .g) The accuracy of Photostat
copy shall be established on oath to the satisfaction of court by the person who
prepared such copy or who can speak of its accuracy." Surinder Kaur v. Mehal
Singh and others
2014(1) R.C.R. (civil) 467.
Secondary evidence of Dying Declaration:
In Aher Rama Gova & Ors. v. State of
, (1979) 4 SCC 500, the secondary evidence of dying declaration recorded
by a Magistrate was produced in evidence. The Court found that though the
original dying declaration was not produced but from the evidence, it is clear
that the original was lost and was not available.
The Magistrate himself deposed
on oath that he had given the original dying declaration to the Head Constable
whereas the Head Constable deposed that he had made a copy of the same and given
it back to the Magistrate. Therefore, the Court found that the original dying
declaration was not available and the prosecution was entitled to give secondary
evidence which consisted of the statement of the Magistrate as also of the Head
Constable who had made a copy from the original. Thus, the secondary evidence of
dying declaration was admitted in evidence, though no application to lead
secondary evidence was filed.
In the end, rule of justice requires that the documents should be allowed to be
brought on record and it is for the court to decide at the time of deciding the
final lis with regard to authenticity, admissibility, genuineness of the
document and as to whether the secondary evidence fulfills the requirements.
Discovery of the truth is the essential purpose of any trial or enquiry,
observed a three-Judge Bench of the Supreme Court in Maria Margarida Sequeria
Fernandes v. Erasmo Jack de Sequeria through LRs
.,: 2012(2) RCR (Civil) 441
A timely reminder of that solemn duty was given, in the following words:
"What people expect is that the Court should discharge its obligation to find
out where in fact the truth lies. Right from inception of the judicial system it
has been accepted that discovery, vindication and establishment of truth are the
main purposes underlying the existence of the courts of justice."
Written By: Advocate Rajinder Goyal
Former Addl. Advocate General, Punjab,
Punjab & Haryana High
Office: S.C.O No.19(2ndFloor),Sector10-D,Chandigarh
Email: [email protected]