Documentary Evidence

DOCUMENTARY EVIDENCE

Author: Jatin Garg, VIPS, Delhi

Documentary evidence refers to that evidence which is in Tangible, physical form. It is different from other kinds of evidence in many ways. Other kinds of evidence include oral evidence, circumstantial evidence, hearsay evidence, etc. Generally, the credibility of the documentary evidence is comparatively higher than other types of evidence.

According to the Indian Evidence act,1872, concerning documentary evidence, the act requires that generally the original should be produced because it is considered that copy of the document may contain omission or mistakes of a deliberate or accidental nature.

Documentary evidence is defined in the act as all documents produced for the inspection of the court. The purpose of producing documents is to rely upon the truth of the statement contained therein. This involves when a document is produced in court, analysis of three questions is taken into consideration:

• Is the document genuine?
• What are its contents?
• Are the statements in the documents true?

Explicit provisions regarding documentary evidence are contained in chapter V, Section 61-90 of the Evidence Act, 1872. These provisions provide for the detailed guidelines and procedure of how documentary evidence is to be admitted in a court of law. It also provides for the evidentiary value for such kind of documents.

Proof of content of documents (Section 61)

Section 61 of the act provides that the contents of documents may be proved either by primary or secondary evidence.

Section 3 defines documentary evidence-“Documentary evidence means all documents produced for the inspection of the court”. Documents are of two kinds: Public and private. Section 74 gives a list of public documents. Rest all other documents are regarded as private documents. The production of documents in courts is regulated by the Civil Procedure Code and the Criminal Procedure Code.

The contents of a document must be proved either by the production of the document which is called primary evidence or by copies or oral accounts of the contents, which is called secondary. It was held by the supreme court that where there is documentary evidence, the oral evidence must not be given much weight.

When a document is not required to be registered, it is admissible, even though unregistered. An ex-parte affidavit without having to allow the other party to test the veracity of its contents by cross-examination, cannot be a proof of its contents.

Primary Evidence: Section 62

Section 62 provides for the provision of Primary Evidence. Primary evidence means the documents itself produced for the inspection of the court. Ingredients for section 62 are as follows:

• Primary evidence means the document itself produced for the inspection of the court.
• Where a document is executed in several parts, each part is primary evidence.
• Where a document is executed in counterpart, each counterpart is primary evidence against the party executing it.
• Where several documents are made by a uniform process, such as painting, lithography, or photograph, each one is primary evidence of the contents of the rest.
• Where several documents are made by one uniform process, but they are copies of the common original, they are not primary evidence of the contents of the original.

This section defines the meaning of the primary evidence which means the documents itself is produced for the inspection by the court. Where a document is executed in several parts, each part is the primary evidence of the document. Where a document is executed in counterparts, each counterpart is primary evidence.

Two wills in identical language were prepared by the process of typing in which the second copy was obtained by carbon impression. Both were duly executed and attested. Both were held to be original and not a copy of the other. The fact that the testator inserted a remark on one of the “true copy” would not alter their character.

In Prithvi Chand v. state of H.P, it was held that a carbon copy was made by a uniform process of the certificate of a doctor (as to the condition of a rape victim) given in the performance of professional duty. It was held to be primary evidence within the meaning of the explanation to section 62.

Section 276 of the succession act 1925 requires that an application for probate or letters of administration should be made with the “will” annexed. Since this does not necessarily mean “original will”, a copy certified by sub-registrar was allowed to be annexed

Secondary evidence: Section 63

Section 63 provides for Secondary evidence means and includes:

• Certified copies.
• Copies made from the original by a mechanical process and copies compared with such copies.
• Copies made from or compared with the original.
• Counterparts, of documents as against the party who did not execute them.
• Oral accounts of the contents of a document by a person who has seen it.

Clause 1 to 3 deals with copies of the documents, while clause 4 deals with counterparts of documents, and clause 5 deals with oral statements.

At one instance a copy of the document was admitted in evidence in trial court without objection, its admissibility cannot be challenged in the appellate court because omission to object to its admissibility implies that it is a true copy and therefore, it is not open to the appeal court to say whether a copy was properly compared with original or not.

Documents that are merely copies of copies, the originals not having been satisfactorily accounted for, are inadmissible in evidence and must be rejected.

In Idandas v. Anant Ram Chandra, when a document is executed in counterpart, each virus signing only the part by which he is bound, each counterpart, each party signing only the part by which he is bound, each counterpart is the best evidence against the party signing it and his privies. As to other parties, it is only secondary evidence. A landlord counterfoil was held to be not relevant for showing that the arrangement was month-to-month tenancy.

ORAL STATEMENTS

Secondary evidence includes, according to cl.5, oral accounts of the contents of a document, given by some person who has himself seen the original document. But a written statement of contents of a copy of a document, the original of which the person making the statement has not seen, cannot be accepted as secondary evidence.

In Veerappa v. Md. Attavullah, it was held that secondary evidence of a document which is lost or difficult to trace can be adduced in two ways:

• By oral evidence of persons who were present when the document was executed.
• By a certified copy of the original document.

In Aher Ram Goa. V Gujral, The original dying declaration was lost, a head constable who maintained a copy testified to its accuracy. This was allowed as corroborative evidence.

Proof of documents by primary evidence: Section 64

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

Ingredients :

• Documents must be proved by primary evidence.
• Secondary evidence can be given under the circumstances described under section 65.

A written document can only be proved by the instrument itself where the contents of any document in question, either as a fact directly in issue or the sub-alternative principal fact the document is proper evidence of its contents. But where a written instrument or document of any description is not a fact in issue and is merely used as evidence to prove some fact, the independent proof is required.

In P.C Purushathama v. S. Perumal, it was held that once a document is properly admitted the contents of the document are also admitted in evidence, though those contents may not be conclusive evidence.

Section 65 mentions cases in which secondary evidence relating to documents may be given. It provides certain emergencies in which secondary evidence concerning a document may be preferred. For example when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved.  Or when the original is of such a nature as not easily moveable. Etc

Special Provision as to evidence relating to electronic record and admissibility: Section 65-A & 65-B

Section 65-A provides that the contents of electronic records may be proved in accordance with the provision of section 65-B. It may be noted that section 65-A & 65-B are new insertions to the original act and are inserted by an amendment in the year 2000. Earlier it was becoming a difficult task to prove the electronic evidence in courts as no explicit provision provided an authenticity to the electronic records and with the increasing use of electronic mediums and with the emergence of the digital era, it became imperative on Indian courts to make electronic records admissible to ensure justice in its truest sense.

According to section 65-B, any information contained in an electronic record which is printed on paper, stored, recorded, or copied in optical or magnetic media produced by a computer shall be deemed to be also a document provided condition mentioned in the section is satisfied.

The conditions shall be as follows:

• Computer output containing the information was produced by a computer that was regularly used to store or process such information by a person having lawful control over the use of a computer.
• Such information was regularly fed in such a computer during the ordinary course of activities.
• The computer should be operating properly during the period for which the information is sought. Even if the computer was not operating during such a period then the defect was not as such to affect the electronic record or the accuracy of its contents.
• The information contained in the electronic record reproduced or is derived from such information fed into the computer in the ordinary course of the said activity.

A certificate is required by virtue of section 65-B if the statement is to be given, then following is be duly regarded:

• Identifying the electronic record containing the statement and describing how it was produced.
• Giving such particular of any device involved in the production of that electronic record as may be appropriate for showing that the electronic record was produced by a computer.
• Dealing with any of the matters to which the condition as provided above.

Rules as to notice to produce: Section 66

This section lays down that a notice must be given before secondary evidence can be received under section 65-A. Notice to produce a document must be in writing. Civil procedure code,1908 and Code of criminal procedure,1973 provide for provision regarding the production of notice and documents.

Ingredients are as follows:

• Secondary evidence of the contents of the documents referred to in Section 65, clause (a), shall not be given.
• Unless the party has given notice to other parties to produce it as is prescribed by law.
• Notice is not necessary in the following cases:
• When the document to be proved is itself a notice.
• When, from the nature of the case, the adverse party must know that he will be required to produce it.
• When the adverse party has obtained possession of the original by fraud or force.
• When the adverse party or its agent has the original in court.
• When the adverse party or his agent has admitted the loss of the document.
• When the possessor of the document is out of the reach or not subject to the process of the court.

Proof of signature and handwriting of person alleged to have signed or written document produced: Section 67

If the document is alleged to be signed or to have been written wholly or in part by any person, the signature or writing or 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 provides for proof as to digital signature.

Provisions related to Attested documents

Section 68 of the act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness has been called to prove the execution, provided there is an attesting witness alive and is subject to the process of the court. This section is not permissive or enabling. It lays down the requirement which the parties have to observe so that a document can be held to be proved. The principle underlying the section is that execution of the will must be proved by at least one attesting witness.

Section 69 provides for the situation in which there is no attesting witness found. As per this section, if no such attesting witness can be found, it must be proved that the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person.

As per section 70 of the evidence act,1872, the 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 is a document required by law to be attested. This section serves as a proviso to section 68. The effect of this section is to make the admission of executant a sufficient proof of execution of document as against the executant himself even it may be a document for which attestation is required by law. Owing to this reason only, the document does not become binding on other parties or persons.

Section 71 provides for a Proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. In Ram Ratan v. Bittan Kaur, it was held that this section only operates if the attesting witness denies or does not recollect the execution of the document or has turned hostile.

When a document is not required by law to be attested, then provision of section 72 applies and the document shall be proved as if it was unattested.

As per section 73, to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

While section 73 A provides for proof as to verification of the digital signature. In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed the court may direct:

• That person or controller or the certifying authority to produce the digital signature certificate.
• Any other person to apply the public key listed in the digital signature certificate and verify the digital signature purported to have been affixed by that person.

Provisions Regarding Public Document

Section 74 enumerates that the following are public documents:

1. Documents forming the acts, or records of the acts-
2. Of the sovereign authority,
3. Of official bodies and tribunals, and
4. Of public officers, legislative, judicial and executive of any part of India or the commonwealth, or a foreign country.
5. Public records kept in any state of private documents.

Documents are divided into two categories:

• Public
• Private

The section states what comes in the category of public documents. Section 75 states that all other documents are private documents. Section 74-78 deal with:

1. Nature of public document, and
2. The proof which is given of them.

Section 74 defines their nature and section 76-78 deals with the exceptional mode of proof applicable in their case. The proof of private documents is subject to the general provisions of the act relating to the proof of documentary evidence contained in section 71-73.

Public documents form an exception to the hearsay rule and their admissibility rest on the ground that the facts contained therein are of public interest and the statements are made by authorized and competent agents of the public in the course of their official duty.

In Ram Jethmalani v. director CBI, it was held that statements recorded by police officers under section 161 Cr.P.C are required by section 115(5) & (7) Cr.P.C read together, to be furnished to the accused. Hence all earlier case, before this provision was enacted in Cr.P.C 1973, which regarded such statement as a public document entitled to the privilege against disclosure under section 123 of the evidence act became out of date since then.

Presumptions as to documents

Section 79-90 Section deals with certain presumptions as to documents.

Section 79 provides that the court shall presume to be genuine every document purporting to be a certificate, certified copy, or the document, which is by law declared to be admissible as evidence of any particular fact which purports to be duly certified by any officer of central government or a state government, or by any officer who is duly authorized by the central government. Provided that such document is substantially in the form and purports to be executed in the manner directed by the law in that behalf. This section proceeds upon the maxim Omnia proesumuntur rite esse acta. It means all acts are presumed to be rightly done. Though the courts are directed to draw the presumption in favor of an official certificate, it is not a conclusive presumption, it is rebuttable.

Section 80 provides whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken following the law, and purporting to be signed by any judge or magistrate, or by any such officer, the court shall presume that the document is genuine, that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true and that such evidence, statement or confession was duly taken.

Section 81 provides for presumptions as to gazettes, newspapers, private acts of parliament, and other documents. This section casts a presumption on the courts to presume documents purporting to be London gazette or any official gazette or to be newspaper or journal and such documents to be genuine. Section 81 A is a corresponding section and provides for the genuineness of documents in electronic form.

Section 82 provides for presumption as to document admissible in England without proof of seal or signature. These provisions have lost their relevance in today’s era because India is now an independent nation and is not a colony of Britain. Section 83 relates to presumption regarding maps or plans made by the authority of government.

Section 84 deals with presumption as to books and decisions printed or published under the authority of government. While section 85 deals with presumption as to power of attorney. According to section 85, the court shall presume that every document purporting to be the power of attorney which is executed before Notary public or any court, to be so executed and authenticated. Section 86 provides presumption as to certified copies of foreign judgment and records.

Section 87 provides for presumption as to maps and charts, provision regarding telegraphic messages is dealt in section 88 of the act.  Section 89 deals with presumption as due execution of document not produced before the court. In Kodri Smt. v. L.RS of Fakira, a document is shown to have remained unstamped for some time after its execution, the party who relied on it must prove that it was duly stamped.

While section 90 deals with documents more than 30 years old. Where any document purporting or proved to be thirty years old, is produced from any custody which the court in particular case considers proper, the court may presume that the signature and every other part of such document, was duly executed and attested by persons.