Secondary Evidence

Satyameva 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:
"Truth alone 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:
Every trial 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 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.

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.

62-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 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:

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.

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:

1. 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
2. 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;
3. 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;
4. when the original is of such a nature as not to be easily movable;
5. when the original is a public document within the meaning of Section 74;
6. 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;
7. 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:

1. when the document to be proved is itself a notice
2. when, from the nature of the case, the adverse party must know that he will be required to produce it;
3. when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
4. when the adverse party or his agent has the original in Court;
5. when the adverse party or his agent has admitted the loss of the document;
6. 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:

1. that the original document was properly stamped and admissible in evidence and
2.  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 be satisfied.

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 practice'.

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.

In Simarpal 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.

Whether it 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 (Civil) 409.

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 Singh, 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 documents.

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 Subbarao, (SC), followed in 2007(4) RCR(CIVIL) 548, Hariom Agrawal v. Prakash Chand Malviya, (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 that:
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.

Further Section 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 instrument itself.

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 Act.

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 Stamp Act.

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, 1899.

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 lead.

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:

1. any of the circumstances for reception of secondary evidence under Section 65 of the Evidence Act
2.  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 Haryana),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:

1. 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
2. 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;
3. 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 contents; and
4. 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.
    

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 satisfied:

1. There must be a certificate which identifies the electronic record containing the statement
2. The certificate must describe the manner in which the electronic record was produced;
3. The certificate must furnish the particulars of the device involved in the production of that record;
4. The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
5. 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 party:

In Ashok Dulichand v. Madahavlal Dube and Anr., [1976] 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 Singh and recently in Jagmail Singh vs Karamjit Singh, 2020(2) RCR(Civil) 510.

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.

In U. 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 the Act.

Recently in 2020(2) RCR 510, Jagmail Singh v. Karamjit Singh (SC), it 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:

1. Photostat copy of a document can be allowed to be produced only in absence of original document.
2. 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
3. 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.
4. 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.
5. Allowing production of Photostat copy in evidence does not amount to its proof.

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 Gujarat, (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 Court, Office: S.C.O No.19(2ndFloor),Sector10-D,Chandigarh
Email: [email protected], Mobile:+91 9814033663