Documentary Evidence in Indian Evidence Act [Section 61 to 73A]

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In Indian law, there are two methods for proving the facts of a particular document: oral evidence and documentary evidence. These two methods are discussed in Chapters 4 and 5 of the Indian Evidence Act.

Chapter 4 of the Indian Evidence Act deals with oral evidence, specifically in Sections 59 and 60. This chapter lays out the rules and procedures for presenting oral evidence in court.

Chapter 5, on the other hand, focuses on documentary evidence and is composed of Sections 61 to 90A. Section 3 of this chapter defines what constitutes documentary evidence, while Sections 61 to 65 outline the methods for proving a fact using documentary evidence.

Meaning of Documentary Evidence

Documentary evidence in the Indian Evidence Act refers to any material object that is presented to a court or tribunal as proof of a fact. It may include physical objects such as contracts, invoices, receipts, photographs, videos, audio recordings, emails, text messages and other types of written or recorded material. The purpose of documentary evidence in the Indian Evidence Act is to provide objective and reliable proof of the existence of facts that are relevant to a legal proceeding. 

Documentary evidence is governed by various rules and procedures and its admissibility is subject to the satisfaction of certain conditions, such as authenticity, relevance and probative value. The importance of documentary evidence in legal proceedings cannot be overstated as it can play a decisive role in determining the outcome of a case.

Documentary Evidence in Indian Law

Documentary evidence is a crucial part of presenting evidence in court in India. It is defined in Section 3 of the Indian Evidence Act and is generally considered to be more trustworthy than oral evidence.

The Doctrine of Vox Audita Perit, Literra Scripta Manet, emphasises the importance of written evidence, as spoken words can easily be forgotten or misunderstood, while written words remain. Therefore, when presented with both oral and documentary evidence, courts give more weight to the latter.

Under the Indian Evidence Act, documentary evidence is divided into three categories:

General Rules: Sections 61 to 73A deal with the general rules for proving documentary evidence in various cases.

Public Documents: Sections 74 to 78 cover public documents, which are documents issued by a public office or a public servant.

Presumptions: Sections 79 to 90A deal with presumptions as to the documents.

Section 61 of the Indian Evidence Act outlines the methods for proving the contents of a document in court. It states that there are two methods for proving the contents of a document:

Primary Evidence: This is discussed in Section 62.

Secondary Evidence: This is discussed in Section 63.

Provisions under Indian Evidence Act

The Indian Evidence Act 1872 contains provisions related to documentary evidence, which are explained below:

Section 3: Interpretation Clauses “Document”

This Section defines the term “document” to include any substance on which matter is expressed or described by letters, figures, marks or more than one means and can be used for recording the matter. 

The definition of the term is very broad and encompasses various types of records, including paper documents in different languages, banners, musical compositions, tattoos, symbols, etc.

Section 61: Proof of Contents of Documents

This Section requires that the contents of documents must be proved by either primary evidence or secondary evidence. No other methods are allowed to prove the contents of the document.

Section 62: Primary Evidence

According to this Section, the original document itself produced to the court for inspection is primary evidence. It is considered the best evidence, providing the greatest certainty of the fact in issue.

Section 63: Secondary Evidence

This Section states that the copy or certified copy of the original document is secondary evidence. It also allows for an oral statement given by a person about the contents of the document after reading it. However, this type of evidence is only considered under certain conditions.

Section 64: Proof of Documents by Primary Evidence

This Section outlines the best evidence rule for documentary evidence in the Indian Evidence Act, stating that the best evidence of the contents of the document is the original document itself. The contents of the document must be proved by producing the original in court. Section 65 acts as an exception to this rule.

Section 65: Cases in Which Secondary Evidence Relating to Documents May Be Given

Before presenting secondary evidence, the conditions stated in this Section must be fulfilled and the non-production of the original must be accounted for in a way that brings it under one of the conditions provided. This Section is meant to protect the rights of those who are unable to present primary evidence due to circumstances beyond their control.

Primary Evidence in Indian Evidence Act

Primary Evidence as per Section 62

Section 62 of the Indian Evidence Act, 1872, provides the definition of primary evidence. It states that primary evidence is the original document in its original form. For instance, if a person needs to prove that he was a minor when he entered into a contract, then his original birth certificate would be considered primary evidence.

Primary evidence has a high evidentiary value and is considered to be the best evidence. It is highly reliable and has a lesser chance of tampering. The primary evidence should be in its original form.

Importance of Primary Evidence

The Indian Evidence Act, 1872, considers primary evidence to be of utmost importance and gives it a higher status as compared to other evidence. Section 64 of the Act mandates the presentation of primary evidence for proving the contents of the document.

The reason behind this is that the court considers primary evidence to be more trustworthy and reliable. However, Section 65 of the Act provides some exemptions for presenting secondary evidence in certain restricted cases. In cases where Section 65 does not provide an exemption, primary evidence must be presented.

Exceptions to Primary Evidence as Documentary Evidence in Indian Evidence Act

In the case of Prithi Chand vs State of Himachal Pradesh, it was held that carbon copies cannot be considered primary evidence against the original document, even though they are primary evidence of each other, as they are brought from the same source and have undergone a uniform process. This case illustrates the strict application of primary evidence and its importance in legal proceedings.

Definition of Secondary Evidence

The meaning of secondary evidence is defined in Section 63 of the Indian Evidence Act of 1872, which lists five different types of evidence that can be accepted as secondary evidence. In the case of J. Yashoda vs K. Shobha Rani, the court held that this definition is exhaustive and includes all types of secondary evidence.

Furthermore, the court established the rule of best evidence, which states that the highest form of evidence available should be presented in court before any inferior proof is accepted. This means that if the original document (i.e., primary evidence) is available, then no secondary evidence will be accepted unless a proper explanation is provided for the absence of the primary evidence.

Circumstances When Secondary Evidence Can Be Given

Under Section 65 of the Indian Evidence Act, there are seven specific situations where secondary evidence can be presented in court. These include proving the existence, condition or content of a particular document. However, the rule of best evidence still applies and primary evidence is preferred over secondary evidence whenever it is available.

Amendments to the Indian Evidence Act

In 2000, the Indian Evidence Act was amended to include two new Sections: 65A and 65B. Section 65A states that electronic evidence can be admissible in court under Section 65B. The admissibility of electronic evidence depends on the fulfilment of the conditions outlined in Section 65B.

State (NCT of Delhi) v. Navjot Sandhu

Facts: In this case, the accused was convicted of various offences under the Indian Penal Code. One of the key pieces of evidence presented against the accused was their phone call records.

Issue: Can a phone call records to be admissible evidence in court?

Judgment: In the case of State (NCT of Delhi) v. Navjot Sandhu, the Supreme Court made exceptions to the rules for secondary evidence given under Section 65A. The court held that phone call records are considered secondary evidence because the primary evidence would be the information stored by the telecom servers

Notice to Produce a Documentary Evidence in Indian Evidence Act

Section 66 of the Indian Evidence Act requires a notice to produce when the possession of the original document is with some other party. This notice must be given to the person’s attorney or pleader and failure to do so restricts the presentation of the original document. Section 164 of the Indian Evidence Act states that if a party refuses to produce a document, they cannot produce it later without the other party’s consent.

Documents That Need to be Attested

Sections 67 to 73A deal with the documents that need to be attested, meaning that they must be proved genuine in court. Attestation serves as evidence or proof for something.

Proof of Attested Documents

Section 68 of the Indian Evidence Act deals with the proof of documents that require attestation. It states that such documents cannot be accepted as evidence in the court unless they have been attested in the presence of at least one attesting witness, as required by law.

However, there is an exception to this rule. In cases where a will has been registered under the Indian Registration Act of 1908, the attesting witness need not be present in court unless the executor denies executing the will or if there is evidence of false or tampered execution.

The execution of a document involves two steps – a signature of the person and their full consent to all the contents of the document. The term “artist” is not defined in the Indian Evidence Act, but it is defined in the Transfer of Property Act under Section 3 as a person who has seen the other person executing the document.

When Attestor is Absent

Section 69 deals with cases where the attestor is absent. It states that in situations where the document was executed in the United Kingdom or when a new witness is available, it must be proved that the signature and handwriting of the executor and the attesting witness match.

Section 70 – Admission by Party to Attested Document

Section 70 deals with a situation where a party admits to having executed the attested document, even if it was required to be attested following the law. Admission under Section 70 is not the same as admission under Section 22. If a person admits to executing a sale deed and to have signed the document but denies the presence of any witnesses, the attesting witnesses must be called under Section 68 to prove the bond.

Section 71 – Proof when Attesting Witness Denies or Forgets

Section 71 deals with situations where the attesting witness denies or forgets having executed a document. In such cases, the document can be proved by other evidence.

Section 72 – Proof of Unattested Documents

Section 72 states that even if a document is attested when it does not require attestation, it can still be proved as unattested. To prove an attested document, it is necessary to prove that it is attested and that the signature matches. However, to prove an unattested document, only execution needs to be proved.

Section 73 – Proof of Signature, Writing or Seal

Section 73 states that when there is a question about proving a signature, writing or seal of a particular person, it may be proved with the help of any written matter, signature, writing or seal of that particular person which has already been admitted or proved in the court to be valid. The court may also direct a person to write certain words or figures to compare such a signature, writing or seal under the Section. The court has discretionary power in this matter.

Relevant Case Laws on Documentary Evidence in Indian Evidence Act

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

In this case, the Madras High Court held that a tape-recorded statement can be admissible as secondary evidence if the accuracy of the recording is proved by the maker of the record and the possibility of tampering with the record is ruled out.

Kripa Shankar v. Gurudas AIR 1995 SC 2152

The Supreme Court of India dismissed an appeal in this case and ruled that an ex-parte affidavit cannot be considered documentary evidence without affording an opportunity to the other party to cross-examine the deponent.

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

The Supreme Court of India held that a duplicate document cannot be admitted as secondary evidence if the conditions prescribed in Section 65 of the evidence act are not satisfied. In this case, the original document was not retrieved for comparison with the duplicates and clause (a) of Section 65 was not followed, thus the apex court upheld the High Court’s order and dismissed the appeal.

Conclusion

documentary evidence plays a crucial role in the legal system and is widely used in courts to prove facts and establish truth. The Indian Evidence Act, 1872, provides for various provisions related to the admissibility and proof of documentary evidence. 

From Sections 61 to 73, the Act covers different aspects of documentary evidence, such as proof of handwriting, attestation, admission by parties and exceptions to the rule of attestation. It is important to note that documentary evidence has to be properly authenticated and the accuracy of the record must be established for it to be admissible in court. 

The case laws discussed above also demonstrate the importance of complying with the conditions and requirements for the admissibility of documentary evidence. In conclusion, the admissibility and weight of documentary evidence depend on various factors, including its relevance, authenticity and reliability and the courts carefully evaluate these factors before admitting it as evidence.


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