Difference Between Primary and Secondary Evidence: In the Context of the Indian Evidence Act

 

Difference Between Primary and Secondary Evidence: In the Context of the Indian Evidence Act

📌 Introduction

Evidence plays a crucial role in proving facts in a court of law. The Indian Evidence Act, 1872, defines the types of evidence and their admissibility. Under this act, evidence is mainly classified into two categories: Primary Evidence and Secondary Evidence.

In this article, we will explore the detailed differences between these two types of evidence and understand the circumstances under which secondary evidence is admissible in court.

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📖 What is Primary Evidence?

🔹 Definition

According to Section 62 of the Indian Evidence Act, 1872:
"Evidence that proves the original nature of a document or material is called primary evidence."

✅ Key Points About Primary Evidence

1. Original Document: The original document is presented in court.
2. Direct Evidence: It is the strongest and most direct form of evidence.
3. Copies Are Not Accepted: Unless required under exceptional circumstances.
4. Reliable: Considered more trustworthy as the chances of manipulation are minimal.

🏛 Examples

✅ Original Land Records: If the ownership of land is to be proved, presenting the original registry in court will be considered primary evidence.
✅ Original Signed Contract: In a contractual dispute, the original signed contract will be primary evidence.

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📖 What is Secondary Evidence?

🔹 Definition

According to Section 63 of the Indian Evidence Act, 1872:
"Any evidence that is an authentic reproduction of an original document is called secondary evidence."

✅ Key Points About Secondary Evidence

1. Copies Are Accepted: Such as photocopies, certified copies, or other reproduced documents.
2. Oral Explanation of Documents: Testimony from a person who has seen the original document.
3. Other Relevant Proofs: Microfilm, digital records, telegrams, and other electronic evidence.
4. Accepted Only Under Special Conditions: Secondary evidence is admissible only when the original evidence is unavailable.

🏛 Examples

✅ Photocopies or Scanned Copies: If the original document is unavailable, a certified photocopy can be submitted.
✅ Oral Testimony of a Witness: If the original contract is lost, a person who has seen the contract can provide oral testimony as secondary evidence.

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📌

Difference Between Primary and Secondary Evidence

Aspect	Primary Evidence	Secondary Evidence
Definition	The original document or direct proof presented in court.	An authenticated copy or reproduction of the original document.
Level of Acceptance	Most reliable and always admissible.	Accepted only under special circumstances.
Examples	Original contract, land registry, original audio-video recording.	Photocopies, oral testimony, digital records.
When Admissible?	Always admissible if available.	When the original document is lost, destroyed, or otherwise unavailable.

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📖 When Can Secondary Evidence Be Admitted?

Section 65 of the Indian Evidence Act, 1872, mentions specific conditions under which secondary evidence can be accepted:

1️⃣ When the Original Document is Lost or Destroyed

✅ If the original document is lost or destroyed and cannot be retrieved, its copy can be presented in court.
✅ Example: If a contract is destroyed in a fire, a photocopy can be submitted.

2️⃣ When the Original Document is in the Custody of the Court

✅ If the document is in the custody of the court and cannot be removed, a certified copy can be submitted.

3️⃣ When the Original Document is in the Opponent’s Possession and They Refuse to Present It

✅ If an important document is with the opposing party and they deliberately refuse to produce it, secondary evidence can be considered.
✅ Example: In a rental dispute, if the landlord does not produce the rent receipt, the tenant can present a copy.

4️⃣ When the Document is Typically Available in Copy Form

✅ Some government records or official documents are only available as certified copies, such as:
📜 Land registration records
📜 Certified copies of court judgments

5️⃣ Electronic Evidence and Digital Records

✅ Under the Indian Information Technology Act, 2000, electronic records are also admissible as secondary evidence.
✅ Example: Emails, WhatsApp messages, CCTV footage, online bank records.

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🏛 Landmark Judgments by Indian Courts

1. Murari Lal v. State (1962 AIR 1189) – This case ruled that if the original document is unavailable, a certified photocopy can be accepted as evidence.
2. Anvar P.V. v. P.K. Basheer (2014 SC 179) – Clarified that electronic evidence is admissible as secondary evidence under the Indian Evidence Act.

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🔗 Conclusion

Primary evidence is the most authentic and acceptable form of evidence, whereas secondary evidence is admitted only when the original document is unavailable. Various provisions in the Indian Evidence Act ensure that the court receives the best possible evidence in every situation.

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