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October 26, 2016

Primary & Secondary Evidence | Definition & Differences

Primary & Secondary Evidence

In civil as well as in criminal cases, litigant parties are required to produce evidences in support of their claims. Great caution and care is taken by the law while admitting evidence produced by the litigant parties. It is carefully examined that whether the evidence so produced is primary or secondary. As it is the evidences produced before the court which is the key instruments in determining a fact in issue.

Meaning of Evidence

Evidence used in the judicial proceedings means the facts, testimony or documents which may be legally received in order to prove or disprove matter in issue.

Primary Evidence

It means and includes;

  • The original document itself produced for the inspection of the court.
  • An oral account of the original evidence i.e. of a person who saw the occurrence and gives and account of it.

Primary evidence also includes the following three type of documents;

  • Document executed in several parts
  • Document executed in counter parts i.e. the term counterpart literally means duplicate.
  • Document made by a uniform process i.e. made or printed at one time from one original.

Secondary evidence

Secondary evidence is a report or an oral account of the original evidence or copy of a document or a model of the original thing. It is always given under certain circumstances, in the absence of that better evidence which the law requires to be given first. Public documents are generally provable by the production of secondary evidence.

  • Certified copies. It means an attested copy obtained from the custodian of public record in his official capacity.
  • Copies made by mechanical process i.e. photocopy.
  • Copies made from or compared with the original.
  • Evidence against the non-executing party in case of conterparts.
  • Evidence of a person who has himself seen the original document.

Reasons for giving secondary evidence

Secondary evidence should not be accepted without a sufficient reason being given for non-production of the original. Such reason must come strictly within the ambit of law.

Right of waiver

Whenever secondary evidence is presented before a court it is the right of the adverse party to object the same in the court of first instance. Otherwise this right will not be available in the appellate court. In this case that right would be deemed to be waived.

Rule of preference and its exceptions

A document must be preferred to be proved by Primary Evidence. It is because the contents of a document can best be proved by the document itself. However there are certain exceptions to the above rule, mentioned as under;

When the original is in the possession of opposite party, or person beyond the reach of court or person not subject of law or person failing to produce the same after the notice of court.

  • When the original is lost or destroyed
  • When the original is voluminous document
  • When the production of original is physically impossible.

In the following instances certified copies of document is admissible;

  • When original is public document.
  • When the law has allowed it be produced.
  • When original consists of numerous accounts.
  • When original is part of judicial record.

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