06. Evidence Act 61-99

Delhi Law Academy

                                                    INDIAN      EVIDENCE      ACT

CHAPTER    V:        DOCUMENTARY    EVIDENCE

Section 61       Proof of contents of documents

  • Contents of documents may be proved
    • either by primary or by secondary evidence

 

Section 62       Primary evidence

  • Primary evidence means
    • the document itself produced for inspection of Court

 

Explanation 1

  • Where a document is executed in several parts
    • each part is primary evidence of the document
  • Where a document is executed in counterpart
    • each counterpart being executed by one or some of the parties only
    • each counterpart is primary evidence as against the parties executing it

 

Explanation 2

  • Where a number of documents are all made by one uniform process
    • as in case of printing, lithography, or photography
  • each is primary evidence of contents of the rest
    • but, where they are all copies of a common original
    • they are not primary evidence of contents of the original

Illustration

  • A person is shown to have been in possession of a number of placards
    • all printed at one time from one original
  • Any one of the placards is primary evidence of contents of any other
    • but no one of them is primary evidence of contents of the original

 

Section 63       Secondary evidence

  • Secondary evidence means and includes
    • certified copies given under provisions hereinafter contained
    • copies made from the original by mechanical processes
      • which in themselves ensure accuracy of the copy
      • and copies compared with such copies
    • copies made from or compared with the original
    • counterparts of documents
      • as against the parties who did not execute them
    • oral account of contents of a document
      • given by some person who has himself seen it

 

Illustrations

(a)

  • A photograph of an original
    • is secondary evidence of its contents
    • though the two have not been compared
      • if it is proved that the thing photographed was the original

(b)

  • A copy compared with a copy of a letter made by a copying machine
    • is secondary evidence of the contents of the letter
      • if it is shown that the copy made by copying machine
      • was made from the original

(c)

  • A copy transcribed from a copy
    • but afterwards compared with the original
  • is secondary evidence
  • but the copy not so compared
    • is not secondary evidence of the original
      • although the copy from which it was transcribed
      • was compared with the original

(d)

  • Neither an oral account of a copy compared with the original
    • nor an oral account of a photograph or machine copy of the original
  • is secondary evidence of the original

 

Section 64       Proof of documents by primary evidence

  • Documents must be proved by primary evidence
    • except in cases hereinafter mentioned

 

Section 65       Where secondary evidence may be given

  • Secondary evidence may be given of existencecondition or contents of a document in these cases:

(a)

  • When the original is in possession or power
    • of the person against whom the document is sought to be proved or
    • of any person out of reach of, or not subject to, process of Court or
    • of any person legally bound to produce it and when, after notice u/s 66 such person does not produce it

(b)

  • When existence, condition or contents of the original have been proved to be  admitted in writing
    • by the person against whom it is proved

(c)

  • When the original has been destroyed or lost
  • or when the party offering evidence of its contents cannot produce it in reasonable time
    • for any other reason not arising from his own default or neglect

(d)

  • When the original is not easily movable

(e)

  • When the original is public document as per section 74

(f)

  • When the original is a document
    • of which a certified copy is permitted by law to be given in evidence

(g)

  • When the original consists 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 collection

 

  • In cases (a), (c) and (d)
    • any secondary evidence of contents of the document is admissible
  • In case (b)
    • the written admission is admissible
  • In cases (e) or (f)
    • a certified copy of the document, but no other kind of secondary evidence, admissible
  • In case (g)
    • evidence may be given as to the general result of the documents
      • by any person who has examined them and who is skilled in examination of such documents

 

Section 65A                Evidence relating to electronic record

  • contents of electronic records may be proved
    • in accordance with provisions of section 65B

 

Section 65B                 Admissibility of electronic records

  • Any information contained in an electronic record
    • which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer
  • shall be deemed to be also a document
    • if conditions in this section are satisfied
  • and shall be admissible in any proceedings
    • without further proof or production of the original
      • as evidence of any contents of the original
      • or of any fact stated therein of which direct evidence would be admissible

 

Section 66                   Rules as to notice to produce

  • Secondary evidence of contents of documents in section 65(a) shall not be given
    • unless the party proposing to give such secondary evidence has previously given
    • to the party in whose possession or power the document is
      • such notice to produce it as is prescribed by law
    • and if no notice is prescribed by law
      • then such notice as Court considers reasonable

 

  • Such notice shall not be required in order to render secondary evidence admissible
    • when the document to be proved
      • is itself a notice
    • when, from the nature of case, adverse party must know that
      • he will be required to produce it
    • when it appears or is proved that
      • the adversary has obtained possession of original by fraud or force
    • when the adverse party or his agent
      • has the original in Court
    • when the adverse party or his agent
      • has admitted loss of the document
    • when the person in possession of the document
      • is out of reach of, or not subject to, the process of Court

 

Section 67                   Proof of signature and handwriting of person

  • If a document is alleged to be signed
    • or to have been written wholly or in part by any person
  • the signature or the handwriting of so much of the document
    • as is alleged to be in that person’s handwriting
  • must be proved to be in his handwriting

 

Section 67A                 Proof as to digital signature

  • Except in case of a secure digital signature
    • if digital signature of any subscriber
      • is alleged to have been affixed to an electronic record
    • the fact that such digital signature is the digital signature of the subscriber
      • must be proved

 

Section 68                   Document required by law to be attested

  • If a document is required by law to be attested
    • it shall not be used as evidence
      • until one attesting witness at least has been called for proving its execution
        • if there be an attesting witness alive
        • and subject to the process of court and capable of giving evidence
  • It shall not be necessary to call an attesting witness
    • in proof of execution of any document, not being a will
    • which has been registered in accordance with the Registration Act, 1908
  • unless its execution by the person by whom it purports to have been executed
    • is specifically denied

 

Section 69                   Proof where no attesting witness found

  • If no such attesting witness can be found
    • it must be proved that
      • attestation of one attesting witness at least is in his handwriting and
      • signature of the person executing the document is in handwriting of that person

 

Section 70                   Admission of execution by party

  • Admission of a party to an attested document of its execution by himself
    • shall be sufficient proof of its execution as against him
    • though it be a document in the handwriting of that person

 

Section 71                   Proof when attesting witness denies execution

  • If the attesting witness denies
  • or does not recollect execution of the document
    • its execution may be proved by other evidence

 

Section 72                   Document not required by law to be attested

  • An attesting document not required by law to be attested
    • may be proved as if it was unattested

 

Section 73                   Comparison of signature or writing

  • In order to ascertain whether a signature or writing
    • is that of the person by whom it purports to have been written or made
  • any signature or writing admitted or proved to have been written or made by that person
    • may be compared with the one which is to be proved
    • although that signature or writing has not been produced or proved for any other purpose

 

  • Court may direct any person present in Court
    • to write any words or figures
  • for enabling it to compare the words or figures so written
    • with any words or figures alleged to have been written by such person
  • This section applies also with any necessary modifications
    • to finger impressions

 

Section 74                   Public documents

  • Following documents are public documents:

(1)

  • Documents forming acts, or records of acts
    • of the sovereign authority
    • of official bodies and tribunals and
    • of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth or of a foreign country

(2)

  • Public records kept in any State
    • of private documents

 

Section 75                   Private documents

  • All other documents are private

 

Section 76                   Certified copies of Public Documents

  • Every public officer having custody of a public document
    • which any person has a right to inspect
  • shall give that person on demand a copy of it
    • on payment of the legal fees therefor
  • together with a certificate written at the foot of such copy
    • that it is a true copy of such document

 

  • Such certificate shall be dated and subscribed by such officer
    • with his name and his official title
  • and shall be sealed
    • whenever such officer is authorized by law to make use of a seal
  • Such copies so certified
    • shall be called certified copies

 

Section 77                   Proof by production of certified copies 

  • Such certified copies may be produced
    • in proof of contents of public documents of which they purport to be copies

 

Section 79                   Genuineness of certified copies 

  • Court shall presume to be genuine
    • every document purporting to be a certified copy
    • or other document which is by law declared to be admissible as evidence of any particular fact
      • and which purports to be duly certified by any officer of Central Govt or of a State Govt

 

Section 84                   Presumption as to and reports of decisions

  • Court shall presume genuineness
  • of every book
    • purporting to be printed and published under authority of Govt of any country
    • and to contain any of the laws of that country
  • and of every book
    • purporting to contain reports of decisions of Courts of such country

 

Section 85                   Presumption as to powers of attorney 

  • Court shall presume that every document purporting to be a power-of-attorney
    • and to have been executed before and authenticated by a Notary Public or any Court etc
  • was so executed and authenticated

 

Section 88                   Presumption as to Telegraphic Messages

  • Court may presume that a message forwarded from a telegraph office
    • to the person to whom such message purports to be addressed
  • corresponds with a message delivered for transmission
    • at the office from which the message purports to be sent
  • but Court shall not make any presumption
    • as to the person by whom such message was delivered for transmission

 

Section 88A                 Presumption as to electronic messages 

  • Court may presume that an electronic message
    • forwarded by the originator through an electronic mail server
    • to the addressee to whom the message purports to be addressed
  • corresponds with the message as fed into his computer for transmission
  • but Court shall not make any presumption
    • as to the person by whom such message was sent

 

Section 90                   Presumption as to documents thirty years old

  • Where any document, purporting or proved to be thirty years old
    • is produced from any custody which Court considers proper:
  • Court may presume
    • that the signature and every other part of such document
    • which purports to be in the handwriting of any particular person
    • is in that person’s handwriting
  • In case of a document executed or attested:
  • Court may presume
    • that it was duly executed and attested by the persons
    • by whom it purports to be executed and attested

 

Explanation

  • Documents are said to be in proper custody
    • if they are in the place in which they would naturally be
    • and under care of the person with whom they would naturally be
  • but no custody is improper
    • if it is proved to have had a legitimate origin
    • or if circumstances are such as to render such an origin probable

 

Illustrations

(a)

  • A has been in possession of landed property for a long time
  • He produces from his custody deeds relating to the land showing his titles to it
    • The custody is proper

(c)

  • A, a connection of B, produces deeds
    • relating to lands in B’s possession
    • which were deposited with him by B for safe custody
  • The custody is proper


Section 91                   Evidence of terms of contracts

  • When terms of a contract or other disposition of property
    • have been reduced to a document
  • and when any matter is required by law
    • to be reduced to a document:
  • no evidence shall be given in proof
    • of terms of such contract or other disposition of property
    • or of such matter
  • Except
    • the document itself or
    • secondary evidence of its contents where secondary evidence is admissible

 

Section 92                   Exclusion of evidence of oral agreement

  • When terms of any such contract or other disposition of property
  • or any matter required by law to be reduced to a document
    • have been proved according to the last section
  • no evidence of any oral agreement or statement shall be admitted
    • as between parties to any such instrument
      • for contradicting or varying its terms

 

Section 93                   Evidence to explain or amend ambiguous document

  • When language used in a document
    • is, on its face, ambiguous or defective
  • evidence may not be given of facts
    • which would show its meaning or supply its defects

 

Section 99                   Evidence of agreement varying terms of document

  • Persons who are not parties to a document
    • or their representatives in interest
  • may give evidence of any facts
    • tending to show a contemporaneous agreement
    • varying terms of the document