Documentary Evidence in Indian Evidence Act [Section 61 to 73A] | Civil Law for Judiciary Exams PDF Download

Proving Facts in Indian Law

In Indian law, there are two primary methods for proving the facts of a document: oral evidence and documentary evidence.

Oral Evidence (Chapter 4)

• Chapter 4 of the Indian Evidence Act focuses on oral evidence, specifically in Sections 59 and 60.
• This chapter outlines the rules and procedures for presenting oral evidence in court.

Documentary Evidence (Chapter 5)

• Chapter 5 of the Indian Evidence Act deals with documentary evidence, consisting of Sections 61 to 90A.
• Documentary evidence includes physical objects such as contracts, invoices, photographs, and more.
• It serves to offer reliable proof of relevant facts in legal proceedings.

Meaning of Documentary Evidence

• Documentary evidence in the Indian Evidence Act refers to material objects presented in court as proof of a fact.
• Examples of documentary evidence include contracts, receipts, videos, emails, and text messages.
• Documentary evidence plays a crucial role in legal proceedings by providing objective proof of relevant facts.

Documentary Evidence in Indian Law

• Documentary evidence is a crucial component of presenting evidence in Indian courts, defined in Section 3 of the Indian Evidence Act. It holds greater credibility compared to oral evidence due to its documented nature.
• The Doctrine of Vox Audita Perit, Literra Scripta Manet underscores the significance of written evidence. It highlights the reliability of written records over spoken words, which are prone to being forgotten or misinterpreted.
• Indian Evidence Act categorizes documentary evidence into three main sections:
  • General Rules: Sections 61 to 73A encompass the general guidelines for proving documentary evidence across different scenarios.
  • Public Documents: Sections 74 to 78 pertain to public documents, originating from public offices or public servants.
  • Presumptions: Sections 79 to 90A address presumptions regarding documents' authenticity and content.
• Section 61 of the Indian Evidence Act outlines methods for proving document contents:
  • Primary Evidence: Explored in Section 62, primary evidence refers to the original document presented in court for scrutiny.
  • Secondary Evidence: Delved into in Section 63, secondary evidence stands as a substitute for primary evidence when the original is unavailable.

Key Provisions of the Indian Evidence Act

• Section 3: Interpretation Clauses "Document"
  • The term "document" under this section is broadly defined to include any surface where information is written or depicted using letters, numbers, symbols, or other methods.
  • This definition encompasses a wide range of records such as paper documents in various languages, banners, musical scores, tattoos, and symbols.
• Section 61: Proof of Contents of Documents
  • Documents must be proven using primary or secondary evidence, with no other methods being permissible.
• Section 62: Primary Evidence
  • Primary evidence refers to the original document presented in court for examination, offering the highest level of certainty regarding the facts at hand.
• Section 63: Secondary Evidence
  • Secondary evidence includes copies or certified copies of the original document, as well as oral statements made by individuals after reading the document, subject to specific conditions.
• Section 64: Proof of Documents by Primary Evidence
  • This section emphasizes that the original document is the most reliable evidence for proving the content of a document, with the requirement of producing the original in court.
• Section 65: Cases in Which Secondary Evidence May Be Given
  • Under specific conditions outlined in this section, secondary evidence can be presented when the original is unavailable due to certain circumstances, safeguarding the rights of individuals in such situations.

This presentation organizes the information on primary evidence in the Indian Evidence Act into a structured and easy-to-understand format, incorporating key points with clear explanations and illustrative examples.

Definition of Secondary Evidence

• Secondary evidence is explained in Section 63 of the Indian Evidence Act of 1872.
• This section outlines five categories of evidence that qualify as secondary evidence.
• In the legal case of J. Yashoda vs K. Shobha Rani, the court ruled that this definition is comprehensive and covers all forms of secondary evidence.
• The court introduced the principle of best evidence, which mandates presenting the most reliable evidence first in court.
• According to this rule, primary evidence (the original document) must be presented if available, before any secondary evidence can be considered.
• An exception to this rule occurs when a valid explanation is provided for the unavailability of the primary evidence.

Circumstances When Secondary Evidence Can Be Given

• According to Section 65 of the Indian Evidence Act, there are seven specific situations where secondary evidence is admissible in court.
• These situations involve proving the existence, condition, or content of a particular document.
• It is important to note that even in these cases, the rule of best evidence applies.
• Primary evidence, when available, is always preferred over secondary evidence.
• Let's understand this with an example:
  • Suppose a party wants to prove the contents of a lost will. Since the original will is not available (primary evidence), they can present a photocopy or a witness who saw the contents of the original will (secondary evidence).

Amendments to the Indian Evidence Act

• Indian Evidence Act amended in 2000 to introduce Sections 65A and 65B.
• Section 65A permits the admission of electronic evidence under Section 65B.
• Admissibility of electronic evidence is subject to conditions specified in Section 65B.

State (NCT of Delhi) v. Navjot Sandhu Case

• Facts: Accused convicted for various Indian Penal Code offenses; phone call records crucial evidence.
• Issue: Are phone call records admissible in court as evidence?
• Judgment: Supreme Court exceptions to Section 65A for secondary evidence like phone call records; telecom server data as primary evidence.

Notice to Produce a Documentary Evidence in Indian Evidence Act

• Section 66 of the Indian Evidence Act mandates a notice to produce when the original document is in the possession of another party. This notice should be served to the person's attorney or pleader. Failing to provide this notice can result in constraints on presenting the original document.
• According to Section 164 of the Indian Evidence Act, if a party declines to produce a document, they are not allowed to produce it later without the consent of the opposing party.

Documents That Need to be Attested

• Sections 67 to 73A of the Indian Evidence Act discuss the requirement for documents to be attested, indicating that they must be proven genuine in court. Attestation acts as evidence or proof in legal proceedings.

Proof of Attested Documents

• Section 68 of the Indian Evidence Act: This section focuses on proving documents that require attestation. It specifies that such documents are not admissible in court unless they have been attested in the presence of at least one attesting witness as mandated by the law.
• Exception for Registered Wills: In cases where a will is registered under the Indian Registration Act of 1908, the attesting witness does not need to be present in court unless the executor contests executing the will or if there are suspicions of false execution.
• Execution Process: Document execution involves two critical steps: the person's signature and their full consent to the document's contents. The term "attest" is not explicitly defined in the Indian Evidence Act but is clarified in the Transfer of Property Act as someone who has witnessed the document's execution.
• Dealing with Absent Attestors (Section 69): This section addresses scenarios where the attesting witness is not available. It mandates proving that the signature and handwriting of the executor and the attesting witness match, especially for documents executed in the UK or with new witnesses.
• Admission by Party to Attested Document (Section 70): When a party acknowledges executing an attested document, even if attestation was legally required, Section 70 comes into play. Different from Section 22, this admission necessitates calling attesting witnesses under Section 68 if witness presence is denied.
• Proof in Witness Denial or Forgetfulness (Section 71): Section 71 covers situations when the attesting witness denies or forgets executing a document. In such cases, alternative evidence can be used to prove the document.
• Proof of Unattested Documents (Section 72): Even if a document is attested when not mandated, Section 72 allows proving it as unattested. Proving an attested document requires demonstrating attestation and signature verification, while unattested documents only need execution proof.
• Signature, Writing, or Seal Proof (Section 73): When proving a specific person's signature, writing, or seal, Section 73 permits using any previously admitted or proven written material, signature, or seal. The court may also request a demonstration for comparison, with discretionary powers in such matters.

Key Case Laws on Documentary Evidence in Indian Evidence Act

K.S. Mohan v. Sandhya Mohan (AIR 1993 Mad 59)

• Tape-recorded statements can be accepted as secondary evidence if the accuracy is affirmed by the recorder and tampering is ruled out.

Kripa Shankar v. Gurudas (AIR 1995 SC 2152)

• An ex-parte affidavit is not valid documentary evidence without allowing cross-examination of the deponent.

J. Yashoda v. K. Shobha Rani (AIR 2007 SC 1721)

• Duplicate documents cannot be admitted as secondary evidence without meeting the requirements of Section 65 of the evidence act. The original document must be present for comparison, following the guidelines of the act.

Conclusion

• In conclusion, documentary evidence holds a pivotal role in the legal system, serving as a fundamental tool for proving facts and establishing truth in courts. The Indian Evidence Act, 1872, delineates various provisions governing the admissibility and proof of documentary evidence.
• Sections 61 to 73 of the Act cover diverse aspects, including the proof of handwriting, attestation, admission by parties, and exceptions to the rule of attestation. It is crucial to emphasize that documentary evidence must undergo proper authentication, and the accuracy of the record must be established to be deemed admissible in court.
• The discussed case laws underscore the significance of adhering to the conditions and requirements for the admissibility of documentary evidence. In summary, the admissibility and weight of documentary evidence hinge on factors such as relevance, authenticity, and reliability. Courts meticulously evaluate these factors before admitting documentary evidence, ensuring a judicious and fair consideration of evidence in legal proceedings.