Secondary evidence pertains to duplicates or alternatives of original documents that are not accessible. This encompasses certified copies, photocopies, and verbal descriptions of document information. For instance, a photocopy of a contract can be used when the original is lost, or a witness might provide testimony regarding the contents of a document they have reviewed. In property disputes, if the original land deed cannot be located, a certified copy from the registrar's office may be submitted as evidence. In criminal matters, when the original CCTV footage is unavailable, a digital copy or a transcript could be presented as secondary evidence.

Primary evidence is typically preferred because it offers the clearest and most authentic representation of the issue being considered. However, in certain circumstances, the use of secondary evidence may be deemed acceptable, especially in instances where the original document is either lost, damaged, or not readily available for examination.

It is important to note, however, that when secondary evidence is utilized, it is subject to stricter scrutiny regarding its authenticity and accuracy. This rigorous examination ensures that the information presented is reliable and trustworthy, even in the absence of primary evidence.

In the matter of Neeraj Dutta v. State of (Govt. of N.C.T. of Delhi) AIR 2023 Supreme Court 330, the Court determined that secondary evidence should only be admitted if there is a compelling justification provided for the failure to produce the original document, which is considered primary evidence.

Section 58 of the Bharatiya Sakshya Adhiniyam (Section 63 of the Indian Evidence Act, 1872) - Secondary Evidence:

Secondary Evidence Includes:

1. Certified copies provided per the following provisions;
2. Copies generated from the original using mechanical methods that ensure the reproduction's accuracy, along with copies that have been verified against such reproductions;
3. Copies made from or compared to the original document;
4. Counterparts of documents related to parties who did not sign them;
5. Verbal accounts of a document's contents given by individuals who have seen it firsthand;

Under Section 58 of the BSA, secondary evidence also comprises (not mentioned in the Indian Evidence Act, 1872):

• Oral admissions;
• Written admissions;
• Testimony from an expert who has evaluated a document, whose original is comprised of multiple accounts or various documents that are impractical to review in a courtroom.

Illustrations:

1. A photograph of an original document serves as secondary evidence of its contents, even if the original and the photograph have not been directly compared, provided that it can be established that the subject of the photograph was indeed the original.
2. A copy generated by a copying machine, when compared with another copy of a letter, qualifies as secondary evidence of the letter's contents, but only if it is demonstrated that this machine-generated copy was made from the original document.
3. A copy that has been transcribed from another copy and later compared with the original is considered secondary evidence. However, a copy that has not undergone such a comparison is not regarded as secondary evidence of the original, despite the fact that the initial copy, from which it was transcribed, was compared with the original.
4. An oral description of a copy that has been compared with the original, or an oral description of a photograph or machine-generated copy of the original, does not constitute secondary evidence of the original document.

Note: A certified copy of a sale deed is permissible as evidence. Newspaper articles, as hearsay secondary evidence, cannot be trusted. If the loss of the original registered will is adequately accounted for, a certified copy can be accepted and used as evidence, even if an FIR regarding the original will's loss was not filed. Additionally, an unprobated will may be admitted as evidence for ancillary purposes in any proceedings other than those related to probate.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565