Introduction
The law may broadly be divided into substantive or procedural law. The former implies and defines rights, duties, and liabilities; whereas the latter signifies the procedural aspect of the law relating to pleading and; proof through means of which the substantive law may be applied in practical aspects. With regard to judicial evidence; rules may be bifurcated into those relating to quid probandum (things which need to be proved) and those which lay down the modes of proving (modus probandi).
What is Evidence?
Evidence is something that is untampered, primal in its nature, apparent, and at times may be notorious. Usually, evidence is something that satisfies the person’s inquiry with regard to the existence or non-existence of factual description. Trial proceedings are incomplete without evidence(s) since it has the power either to set free or convict the accused. On interpreting Section 3 of the Indian Evidence Act of 1872; evidence means and includes a statement(s) which are to be required to be made by the witness before the court of law in relation to matters of fact which is undergoing an inquiry and may also include documents (be it in electronic form as well) for the scrutiny of the court.
Admissibility of Evidence is of critical importance as it may further shape or break the case before the court. As a matter of fact, the historical aspect is equally important for getting a clear understanding of present-day law on the admissibility of evidence. The present-day law on evidence is much of a contribution of the Colonial age, particularly the commission set up under the chairmanship of Sir Henry Mayne prior to which the court had enjoyed unfettered liberty when it came to the admissibility of evidence.
Selvi v. State of Karnataka
The debate revolving around admissibility of evidence has changed its pace especially after the verdict of the Supreme Court in the case of Selvi v. State of Karnataka[1] whereby Narco-analysis, Brain-mapping, and polygraph tests could not be conducted without the consent of the accused person. Admissibility of scientific evidence also raises certain critical issues relating to basic human rights which are guaranteed and should be made available to the accused under provisions of laws in India. With regard to admissibility, Section 136 of the Indian Evidence Act,1872 explains which all evidence is admissible.
“When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is admissible only upon proof of some other fact; such fact must be proved before evidence is given of the fact first- mentioned; unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”
ut res magis valeat quampereat
The legal maxim, ut res magis valeat quampereat, is also worth mentioning. As per the said maxim; where alternate constructions are possible the court must give effect to that interpretation; which will help in enhanced administration of the system rather than giving importance to that construction which will be responsible for putting unnecessary hindrances in the way of the statute for which it has been exacted.
Even in the situation where evidence is admissible, there are certain provisions that may exclude evidence mostly on the basis of how the evidence has been obtained. The Court may exclude evidence under Section 78 of the Police and Criminal Evidence Act of 1984.
Owing to the gradual development that Indian society has undergone; it becomes quite a tough task to get a competent “witness” and “relevant evidence” and growth of the pathetic attitude on becoming witness would mean inviting him and his family members to numerous and various kinds of problems be it in form of physical, social, legal, economical, moral, political, family and religious is prevalent. The ingredients of private documents may be proved either through primary or secondary evidence.
Meaning of Secondary Evidence
The meaning of the term ‘Secondary Evidence’ is mentioned under Section 63 of the Indian Evidence Act, 1872. Any evidence produced from an original document or; is produced as a substitute for an original item in order to establish a particular aspect in the legal action is regarded as secondary evidence. With the said definition a xerox of a ‘document’ or a photograph shall also be considered as a part of secondary evidence. Section 63 is not restricted to its five clauses[2] but leaves enough scope for the words “means and includes”. Certified copies of original documents come within the ambit of secondary evidence.[3]
Usually, the courts prefer primary evidence (Section 61 of the Indian Evidence Act, 1872) and; try to avoid using secondary evidence as much as possible following the best evidence rule. However, withstanding the circumstances of a case; a court may allow secondary evidence to be introduced by either party for drawing assertions. It is only after the systematic hearing that the court may decide whether to admit the secondary evidence or would it be unfair to accept the duplicate evidence. Under Indian law; Admissibility is always decided by the judge and; all relevant evidence is potentially admissible, subject to common law and statutory rules on exclusion.
When is Secondary Evidence Admissible?
There are certain matters when Section 65 of the Indian Evidence Act is being relied upon as it states when the secondary evidence may be advanced in the court given the existing conditions or contents of the matter.
In case if the original document or evidence is in possession of the person against whom the document is to be proved or; in cases where any person is legally bound to produce it.
Another aspect when the secondary may be produced is when the original document has been destroyed or lost or; when the party contents that it cannot be produced it in a reasonable time. When the originals consist 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 collections or 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. The original is of such a nature as not to be easily movable.
One of the critical aspects is when the original is a public document within the meaning of Section 74. This has been laid down in the case of Mst. Bibi Aisha and Others v. The Bihar Suhai Sunni Majlis Avaqaf and Others.[4]The Court held that under section 65 clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admissible.
Essential Condition for the admissibility of Secondary Evidence
The essential condition for leading secondary evidence is that; the original document could not be produced due to some of the other complications. However, it is the duty of the party who wishes to produce secondary evidence must also establish the non-production of primary evidence. Unless it so established secondary evidence in respect of that document cannot be accepted. The court of judicature in the case of Rashid Khan s/o. Yasin Khan Musalman and another have specifically considered at lengths whether the xerox can be accepted and regarded as secondary evidence.[5]
However, the stance of the High Court in another case has considered the scope of section 65 of the Indian Evidence Act in detail and; held that the photocopy is not admissible as secondary evidence. Since there cannot be any surety of its correctness and accuracy in absence of supporting material on record.
CONCLUSION
With the evolution of time and societies; law relating to evidence have also undergone sea changes when it comes to adjudicating of cases.
Considering the above-cited cases it is well-established fact that; if the new technology is put to use in the judicial process then; it shall turn out to be fruitful in swiftly deciding the cases before the court since it is also the duty of the judge to ensure that no innocent is being punished and that no guilty man escapes. The approach of courts towards secondary evidence has also undergone a plethora of changes.
In the present times due to various cases decided by various high courts; the secondary evidence is admissible in certain conditions only but its evidential value does not change if admissible in court. No doubt Secondary evidence has less evidential value and is generally not easily admissible in court.
In 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 changes 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” therefore yet a uniform law must evolve in the same regard.
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