Documentary Evidence

Documentary evidence refers to written or printed documents, records, or physical materials that are presented in a legal proceeding as evidence to prove or establish facts relevant to the case. It is one of the primary forms of evidence used in court to support the claims or defenses of the parties involved. Documentary evidence can take various forms, including:

1. Written Documents: These are typically written records, agreements, contracts, letters, emails, and other texts that are relevant to the case. Written documents can include deeds, wills, leases, and any other documents that are used to establish the rights and obligations of the parties.
2. Business Records: These are documents created in the ordinary course of business, such as financial records, invoices, purchase orders, and payroll records. Business records are often relied upon to prove financial transactions and business practices.
3. Public Records: These are documents maintained by government agencies and public institutions. Examples include birth certificates, marriage licenses, property records, and court records. Public records are used to prove the legal status or history of individuals and entities.
4. Photographs and Videos: Visual materials, such as photographs and videos, can serve as documentary evidence when they depict events, scenes, or conditions relevant to the case. They are used to provide a visual record of facts or conditions.
5. Maps and Diagrams: Maps, charts, and diagrams can be used to illustrate geographical locations, layouts, or complex information relevant to the case.
6. Scientific Reports and Studies: Scientific reports, studies, and expert opinions that are documented in writing can be presented as documentary evidence to support claims related to scientific or technical matters.
7. Contracts and Agreements: Contracts, including employment agreements, lease agreements, and purchase contracts, are essential forms of documentary evidence when disputes arise.

Primary & Secondary Documentary Evidence

In legal contexts, documentary evidence can be categorized as primary evidence and secondary evidence, each serving a different role in the presentation of evidence in a legal proceeding.

Primary Documentary Evidence

1. Original Documents: Primary documentary evidence refers to the presentation of the original, authentic documents that are directly relevant to the case. These documents are considered the best and most reliable form of evidence.
2. Examples: Birth certificates, marriage licenses, wills, written contracts, and signed agreements are common examples of primary documentary evidence.
3. Admissibility: Primary evidence is generally preferred and given more weight in court. It is usually admissible without the need for secondary evidence unless specific exceptions apply.
4. Chain of Custody: Ensuring the authenticity and integrity of the original document, including its chain of custody, is crucial for primary evidence.

Secondary Documentary Evidence:

1. Copies or Duplicates: Secondary documentary evidence includes copies, duplicates, or reproductions of the original documents. These are not the primary or original documents but serve as substitutes.
2. Examples: Photocopies of a contract, scanned copies of an agreement, or printed copies of emails are examples of secondary documentary evidence.
3. Admissibility: Secondary evidence is admissible when certain conditions are met. It may be used when the original documents are lost, destroyed, not accessible, or when the law allows for its use (e.g., in business records).
4. Best Evidence Rule: The “Best Evidence Rule” is a principle that generally requires the presentation of the original document when its contents are in dispute. However, the rule allows for secondary evidence when the original is unavailable.

Proof of Contents of Documents

Section 61 of the Indian Evidence Act, 1872, deals with the proof of the contents of documents. It outlines the circumstances under which the contents of a document can be proved. Here’s an explanation of Section 61:

Section 61 – Proof of Contents of Documents

• This section pertains to the proof of the contents of documents, and it states that the contents of a document can be proved by primary evidence or secondary evidence.

Primary Evidence (Section 62)

Primary evidence refers to the original document itself. When the original document is available and is being used to prove its contents, it is considered primary evidence. Primary evidence is generally more reliable and preferable in court.

Secondary Evidence (Sections 63-65)

Secondary evidence comes into play when the primary evidence (the original document) is not accessible or cannot be produced in court. Section 63 provides a list of examples of secondary evidence, which includes:

• Certified copies of the original document.
• Copies made from the original with the original’s contents and correctness certified.
• Oral accounts of the document’s contents when the original is lost or destroyed.

Section 65 outlines situations when secondary evidence of the contents of a document is admissible, such as when the original is lost, destroyed, or in the possession of the opposing party.

It’s important to note that secondary evidence is generally considered less reliable than primary evidence because it is a substitute for the original document. The rules and conditions for the admissibility of secondary evidence can vary based on the specific circumstances of the case and the jurisdiction.

In summary, Section 61 of the Indian Evidence Act allows for the proof of the contents of documents through either primary evidence (the original document itself) or secondary evidence when the original is unavailable or inaccessible. The use of secondary evidence is subject to specific rules and conditions outlined in the Act.

Section 63 of the Indian Evidence Act, 1872, deals with the circumstances under which secondary evidence of the contents of a document is admissible in court. It provides a list of situations in which secondary evidence can be used when the original document is not accessible or cannot be produced in court. Here’s an explanation of Section 63:

Section 63 – Secondary Evidence of Documents

Section 63 outlines when secondary evidence of documents can be admitted in court. Secondary evidence is a substitute for the original document when the original is not available, lost, destroyed, or in the possession of the opposing party.

1. Certified Copies: When the document is a public document or a certified copy, a copy certified by a public officer with the custody of the original can be admitted as secondary evidence.
2. Copies Made in the Usual Course of Business: In cases involving documents that are not public and are part of regular business or trade, copies made in the usual course of business may be admitted as secondary evidence.
3. Copies of Documents Maintained by the Public: Copies of documents maintained by any department of the government or any officer legally authorized to maintain such records may be admitted as secondary evidence.
4. Oral Accounts of the Contents: When the original document is a non-testamentary document (i.e., not a will), oral accounts of the document’s contents may be admitted when the original is in the possession of the party against whom the document is sought to be proved.

It’s important to note that the admissibility of secondary evidence is subject to certain conditions, such as the unavailability of the original document and the application of relevant rules of evidence. The intention is to ensure that secondary evidence accurately represents the contents of the original document and that it is admissible only when necessary.

Section 65: Circumstances when secondary evidence is admissible

Section 65 of the Indian Evidence Act, 1872, outlines the circumstances under which secondary evidence of the contents of a document is admissible in court. It provides conditions and scenarios in which secondary evidence can be used to prove the contents of a document when the original is not accessible or cannot be produced in court.

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

Section 65 sets forth the situations in which secondary evidence of the contents of a document may be admitted in court. These circumstances include:

1. When the Original Document is Lost or Destroyed: If the original document has been lost or destroyed, secondary evidence can be presented to establish its contents. In such cases, the party seeking to introduce secondary evidence must prove the loss or destruction of the original.
2. When the Original Document is in the Possession of the Opposing Party: If the original document is in the possession of the party against whom it is sought to be proved (the opposing party), and that party refuses to produce it, secondary evidence can be admitted to prove the document’s contents. The party seeking to introduce secondary evidence must first request the opposing party to produce the original.
3. When the Original is of Such Nature that It Cannot Be Easily Moved: In cases where the original document is of a nature that it cannot be conveniently or safely moved, secondary evidence can be presented.
4. When the Original is a Public Document: Secondary evidence of the contents of a public document may be admitted without the need to prove the loss or destruction of the original.
5. When the Original is a Document that Has Been Filed or Deposited in a Court or Public Office: If a document has been filed or deposited in a court or public office, and it is not readily accessible for production, secondary evidence of its contents can be admitted.

Admissibility of Electronic Records Section 65A/65B Indian Evidence Act

Section 65A – Special Provisions as to Evidence Relating to Electronic Record

Section 65A was introduced to address the admissibility of electronic records as evidence in legal proceedings. It stipulates the following key points:

1. Admissibility: Electronic records may be admitted as evidence in court. An electronic record refers to any data, record, or information generated, received, or stored in a computer or other similar device.
2. Conditions for Admissibility: To admit electronic records, the conditions specified in Section 65B must be satisfied.
3. Certification: The person producing an electronic record as evidence must certify that the electronic record was generated, stored, or transmitted by a computer during the regular course of its operation.

Section 65B – Admissibility of Electronic Records

Section 65B provides the detailed requirements for the admissibility of electronic records:

1. Certification by the Person in Charge: To admit an electronic record, the person who is in charge of the computer or device that generated the record must provide a certificate. The certificate should confirm the authenticity and integrity of the electronic record.
2. Conditions for Certification: The certificate must meet certain conditions:
   • It must identify the electronic record.
   • It should describe the method used for creating, storing, or transmitting the record.
   • It should state that the computer or device was in regular use for the activities recorded.
   • It should confirm that the electronic record was produced during the regular course of operation of the computer.
   • The certificate should also be signed by the person in charge.
3. Opportunity for Cross-Examination: The person against whom the electronic record is produced must have the opportunity to cross-examine the person providing the certificate.
4. Hearsay Rule: The electronic record should not be admissible unless it satisfies the conditions specified in Section 65B.

Case laws

Anvar P.V. v. P.K. Basheer & Others (2014)

This case, decided by the Supreme Court of India, clarified the importance of complying with the requirements of Section 65B for the admissibility of electronic evidence. It held that electronic evidence must be properly certified by the person in charge of the computer in question, and non-compliance with Section 65B renders the electronic evidence inadmissible.

Shafhi Mohammad v. State of Himachal Pradesh (2018)

In this case, the Supreme Court reiterated the necessity of compliance with Section 65B for the admissibility of electronic evidence. The court stressed that the certificate under Section 65B(4) is mandatory, and its absence renders the electronic evidence inadmissible.

Khan Mohammad v. State of Rajasthan (2019)

This case emphasized the importance of proving the authenticity and integrity of electronic evidence, especially when the evidence is recorded using electronic devices such as mobile phones.

State of Karnataka v. M. Devendrappa (2019)

In this case, the Supreme Court reiterated that electronic evidence is admissible only if the requirements of Section 65B are satisfied. The court emphasized the need for proper certification and the opportunity for cross-examination.

State of Maharashtra v. Chhagan Bhujbal (2019)

This case reaffirmed the significance of compliance with Section 65B for the admissibility of electronic evidence and the requirement that the person providing the certificate must be in a position to confirm the authenticity and integrity of the electronic record.

Public & Private Documents

Sections 74 and 75 of the Indian Evidence Act, 1872, distinguish between public and private documents, which are types of documents used as evidence in legal proceedings.

Section 74 – Public Documents

• Section 74 defines public documents as documents that are:

1. Formally attested, which means they are verified and certified by a public officer with the legal authority to do so.
2. Certified by any person in a legal manner to be a copy of a public document.

Examples of public documents include government records, court orders, and documents prepared and certified by public officials in the course of their duties. Public documents are generally presumed to be genuine and accurate.

Section 75 – Private Documents

• Section 75 defines private documents as documents that are not public documents. Essentially, any document that does not fall within the definition of a public document is considered a private document.

Private documents are typically not presumed to be genuine and may require additional evidence or verification to establish their authenticity. Unlike public documents, private documents are not formally attested or certified by public officials and may include personal correspondence, contracts, or other documents not created or certified by public authorities.

The distinction between public and private documents is significant in the Indian legal system as it affects how these documents are treated as evidence in court. Public documents enjoy a certain level of presumption of authenticity, while private documents may require additional proof to establish their credibility and accuracy.

Presumption as to Documents

Section 79 to Section 90 of the Indian Evidence Act provides various presumptions as to the documents. There are certain presumptions regarding the documentary evidence in this act. According to the Indian Evidence Act, the presumption is of two types. There are certain cases in which the Court “shall presume” and in certain cases, it “may presume”. The terms are defined in Section 4 of the IEA. According to this Section, 

• “May presume” means whenever it is mentioned by this Act that the Court may presume a fact, it may either consider such fact as proved, unless and until it is disproved or may call for proof of it.
• “Shall presume” means whenever it is mentioned in this Act that the Court shall presume a fact, it shall consider such fact as proved, unless and until it is disproved.

Presumption as to the Genuineness of Certified Copies

The certified copies are the copies of public documents that are provided by the authorized officer when it is necessary for inspection. Section 79 of the Indian Evidence Act provides the presumption as to the genuineness of these certified copies. According to this Section, the court presumes the certified copy to be genuine when it comes with a valid certificate. The court also presumes that the officer who has signed the documents holds the official character of the designation mentioned in the certificate. The certified copy of the public document must contain a certificate which is provided by the authorized officer that has to mention that it is the true copy of the document and the officer has to sign the certificate with their name and they also have to mention the date and designation. The certificate should also be sealed whenever it is necessary by the authorized officer.

Presumption as to Documents produced as Records of Evidence

Section 80 of the Indian Evidence Act provides the various presumptions regarding the documents which are provided as evidence.  The Court presumes that the documents which are produced for inspection are genuine. The court also presumes that any statements as to the circumstances under which it was taken, considered to be made by the person signing it, are true and that such evidence, statement or confession was duly taken by following all the procedures. The documents provided for inspection can be a record or memorandum of the evidence that is provided by a witness during the judicial proceeding before the officer authorized by law to take evidence or it can be a statement or confession that is provided by any prisoner or person who is accused, which taken in accordance with the law and the confession must be signed by the magistrate or any other officer authorized by law.

Presumption as to Gazettes, Newspapers, Private Acts of the Parliament and other Documents

Section 81 of the Indian Evidence Act deals with the presumption regarding Gazettes, newspapers, private Acts of the Parliament. The court presumes the following documents to be genuine, according to this Section:

• The document professed to be the London Gazette, or any Official Gazette, or the Government Gazette of any colony;
• The documents which are a dependency of possession of the British Crown;
• Newspaper or journal;
• Copy of a private Act of Parliament of the United Kingdom which is printed by the Queen’s Printer.

The documents must be kept in the substantial form mentioned in the law and also it must be produced from proper custody. The Court also presumes the Official gazettes kept in the electronic form is genuine if it is kept in the substantial form mentioned in the law.

Presumption as to Maps and Plans made by Government authorities

The maps and plans are also a recognized type of documentary evidence. Section 83 of the Indian Evidence Act provides the various presumptions regarding maps and plans made by the authorities of the government. According to this Section, the maps and plans are presumed to be genuine and accurate if it is made by the authority of the Central or State government. 

Presumption as to a Collection of Laws and Reports

Section 84 of the Indian Evidence Act provides various presumptions regarding the laws and reports. According to this Section, the court presumes every book which contains laws and reports of the decisions of the Courts of the country to be genuine if the book is printed or published by the authority of the government.

Presumption as to the Power-of-Attorney

Section 85 of the Evidence Act provides various presumptions regarding the power of attorney. According to this Section, the court shall presume that every document that is considered to be the power of attorney, and that is executed before the authorized officer or Notary Public or any court or before any Magistrate is executed and authenticated.

Presumption as to Books, Maps and Charts

Section 87 of the Indian Evidence Act provides various presumptions regarding the books, maps and charts. The Court presumes that any book which contains any information which contains matters of public or general interest, or any published chart that are in relation with the case or any statements that contain relevant facts which are produced for inspection is written and published by the person mentioned in the book. The court also presumes that the time and place of publication which is mentioned in the book or chart to be true.

Presumption as to Telegraphic Messages

Section 88 provides various presumptions regarding the telegraphic messages. According to the Section, the court presumes “that telegraphic messages to be that a message, which is forwarded from a telegraph office to the person to whom such message which claims to be addressed, is in relation with a message that is delivered for transmission at the office from which the message purports to be sent”. The Section also mentions that the Court does not make any presumption regarding the person by whom such a message was delivered for transmission. The Section is not of any use now as the telegraph services have been stopped by the Indian Government

Presumption as to Electronic Messages

This is a very important Section as a lot of information are transferred in the electronic form in the modern days. Section 88A of the Indian Evidence Act provides various presumptions regarding electronic messages. According to this Section, the Court presumes that an electronic message, which is forwarded by the originator by means of an electronic mail server to the addressee to whom the message claims to be addressed corresponds with the message as fed into his computer for transmission. According to the Section, the terms “addressee” and “originator” has the same meaning as mentioned in the clauses (b) and (za) of sub-section (1) of Section 2 Information Technology Act,2000”.

Presumption as to due Execution of Documents not Produced

Section 89 of the Indian Evidence Act provides various presumptions regarding the due execution of documents not produced. The Court presumes that every document that is called for inspection and the documents are not produced even after the notice period, it is presumed that the documents are attested, stamped and executed in the manner which is prescribed by law.

Presumption as to Documents Thirty years old

Section 90 of the Indian Evidence Act deals with the presumption as to documents that are thirty years old. The Court presumes that any document which is produced for investigation is from proper custody and the signature corresponds to the signature of the person whose custody the document was in. The Court also presumes that any handwriting in the document is the handwriting of the person who has the custody of the document. It is also presumed by the Court that in case if the document attested or executed, that it was duly executed and attested by the persons by whom it professes to be executed and attested. The term proper custody means that the document is with the care of the person and in a place where it would naturally be. For example, ‘A’ has been in possession of a certain property for a long time. He produces from his custody deeds the various documents relating to the land showing his titles to it and the custody is held to be proper.

Presumption as to the Electronic Record of Five years old

Section 90A of the Indian Evidence Act provides the various presumptions regarding electronic records of five years old. According to this Section, the Court presumes that when any electronic record that is above five years old and it is procured from the proper custody for investigation. It is presumed that the digital signature corresponds to the particular person whose custody the record is or the signature belongs to the person who has authorized it.  The term proper custody means that the electronic record is with the care of the person and in a place where it would naturally be. It is also mentioned in the Section that no custody is improper if it is proved that the custody is of legitimate origin in the particular case to render such origin possible.