In order to analyze and decide whether a said piece of evidence shall turn out to be fruitful in concluding a case; the admissibility of fact plays a crucial role. Should the evidence be admissible before the court is a question of law and; is to be decided by the Judge as per Section 136 of the Indian Evidence Act. Facts which may not be logically relevant may at times be admissible in courts. Since admissibility is more concerned with law and not logic. Segregation of relevant and irrelevant facts is important so that the whole evidence does not become inadmissible. Be it civil or criminal trials the rules of admissibility of evidence remain the same in both cases.

Section 65

Section 65 of the Indian Evidence Act mentions the cases where secondary evidence relating to documents may be advanced.

Any document which is not the original document is regarded as a secondary document.  Advancing Secondary Evidence is an exception to the general rule. In the case where the original itself is found to be inadmissible because of the failure of the party; who files it to prove it to be valid, the same party shall not be entitled to introduce secondary evidence of its contents. Earlier notice was required to be given before giving secondary evidence.

Owing to the age of digitization and rapid increase in reliance on computerized economy and records in the judicial process; India through its apex court has aptly brought in responded to the challenges and have held that; it shall not be mandatory to have a certificate in order to make electronic evidence mandatory “wherever interest of justice so justifies”. This step has had an impact on the judiciary especially on the criminal trials where reliance on CCTV footage, call details, and other means of electronic media is being relied upon. It must be noted that the value of Secondary evidence is not as that of primary 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 the travesty of justice.

Section 65-B

Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act; the question would arise as to the genuineness thereof and in that situation; the resort can be made to Section 45A – opinion of examiner of electronic evidence.

However, all the preceding judgments were overruled by the recent judgment of the Supreme Court in the case of Sonu v. State of Haryana[1]whereby the court upheld that an electronic record through means of secondary evidence shall be admissible as evidence.

In the said case the apex court upheld the conviction of the main accused by dismissing his criminal appeal and; thereby the accused was held guilty for committing the offence of kidnapping and murdering as per the provisions of the Indian Penal Code. In the said case the PPO had relied on the CDRs of the cellular phone of the accused Sonu in order to prove the guilt beyond a reasonable doubt. This piece of evidence was regarded as crucial evidence for which the accused had in its appeal argued that the same evidence should not be considered as they were inadmissible, due to failure of compliance with the requirements under Section 65-B of the Indian Evidence Act, 1872[2]


Read more blogs



[1]AIR 2017 SC 3441

[2]Sonu v State of Haryana, (Criminal Appeal No. 1416/2013, 1653/2014, 1652/2014)

Leave a Reply

Your email address will not be published. Required fields are marked *

This field is required.

This field is required.


The following disclaimer governs the use of this website (“Website”) and the services provided by the Law offices of Kr. Vivek Tanwar Advocate & Associates in accordance with the laws of India. By accessing or using this Website, you acknowledge and agree to the terms and conditions stated in this disclaimer.

The information provided on this Website is for general informational purposes only and should not be considered as legal advice or relied upon as such. The content of this Website is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and the Law Firm. Any reliance on the information provided on this Website is done at your own risk.

The Law Firm makes no representations or warranties of any kind, express or implied, regarding the accuracy, completeness, reliability, or suitability of the information contained on this Website.

The Law Firm disclaims all liability for any errors or omissions in the content of this Website or for any actions taken in reliance on the information provided herein. The information contained in this website, should not be construed as an act of solicitation of work or advertisement in any manner.