Section 63 of the Indian Evidence Act, 1872

(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;

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(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.

Illustrations:

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine- copy of the original, is secondary evidence of the original.

Comments:

List of secondary evidence:

Section 63 gives a list of secondary evidence in five clauses. It includes the following:

1. Certified copies of the original document;

2. Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies;

3. Copies made or compared with the original;

4. Counterparts of documents as against the parties who did not execute it;

5. Oral accounts of the contents of a document given by some person who has himself seen it.

The list given above is not exhaustive. But when primary evidence is not available the secondary evidence is permission subject to two conditions:

(i) Either the copy is made from original, or

(ii) It is a copy made and compared with the original.

When the original has been lost or destroyed the secondary evidence of the contents of the document is admissible.

Secondary evidence:

1. Certified copies:

When the original document cannot be produced the certified copy may be admissible. Certified copies of the money lender’s licenses are admissible in evidence. But uncertified ordinary copy is not admissible. The word ‘copy’ has not been defined in the Act. It obviously means a document prepared from the original which is an accurate or true copy of the original. Certified copy of registered sale-deed is not admissible except after explanation as to the non-availability of the original in an appropriate manner.

2. Copies made from original by mechanical process:

Copies made from original by mechanical process ensuring accuracy when compared with the original are admissible. For example, printing, lithography or photography the negatives and photographic prints are secondary evidence. In absence of original, Section 65(a) enabled court to receive secondary evidence. The Xerox copies of the newspapers and tape of edited version of speech .telecast on T.V. were found inadmissible as the evidence of the news reports who had heard the speeches and original tape were not brought on’ record.

3. Copies made from and compared with the original:

Copies made from and compared with the original but without any mechanical process are admissible as secondary evidence. Illustration (c). Certified copy of will would be admissible; but copy of document not compared with original, is not admissible.

4. Counterparts of documents as against the parties:

When a document is executed in counterparts it is secondary evidence against the party who did not sign it. For example, a counterfoil of the cheque is a secondary evidence as against the drawer. Each counterfoil is the best evidence against the party signing it and his privies.

5. Oral accounts of the contents of a document:

Sometimes it may so happen that neither the original nor the certified copy is available. Oral evidence to prove the contents of the document is permissible. In such cases the oral evidence of the contents of a document must be given by some person who himself has seen it.

6. Tape recording:

Tape-recording statements are admissible as a secondary evidence.

7. Call records:

The call records relating to cellular phones are admissible and reliable.

8. Loss of document:

Application moved for permission to lead secondary evidence based on ground of loss of document. Presence of document proved from the facts pleaded. Secondary evidence is not illegal.

9. Photostat copy:

Photo-stat copy of family settlement was allowed to be produced before the court as secondary evidence.

10. Secondary evidence before commissioner:

Where evidence is led before the Commissioner, objection to secondary evidence can only be recorded and not to be decided by the Commissioner. It is to be decided by the judge hearing the suit.

11. Secondary evidence permissible:

In a money suit when original Bill of Lading which was under the custody of a Bank and was lost and not traceable the plaintiff was entitled to lead secondary evidence.

Application of the beneficiary son for grant of probate was dismissed as not proper. In this case the testator while was in hospital, the beneficiary son meticulously drafted a will by giving details of assets and liabilities of the testator including cash etc. lying on their Bank, though the testator had no document with him at time. Beneficiary son who was himself a doctor took active part in execution of will and made an application for grant of probate.