Difference Between Primary And Secondary Evidence

In any legal system, evidence plays a crucial role. Without reliable evidence, courts would struggle to render justice, making it difficult to punish wrongdoers and protect victims. Evidence forms the foundation upon which courts determine the truth, separate facts from fiction, and make fair and just decisions. Without it, legal proceedings would become ineffective and arbitrary. Whether it's criminal, civil, or administrative cases, evidence is critical for judges to verify claims and arguments, allowing them to pronounce accurate judgments.

Evidence can appear in different forms, but a key distinction lies in primary and secondary evidence. Understanding the difference between primary and secondary evidence is vital, as it impacts the reliability, credibility, and authenticity of the material presented in court. Whether you are a plaintiff, defendant, lawyer, or judge, knowing how each type of evidence influences legal outcomes is crucial to navigating the Indian justice system.

What Is Primary Evidence?

When it comes to the best quality of evidence in the courts, primary evidence beats any other form of evidence. The documents that are submitted to the Court for the judges to inspect and determine the facts and credibility of the claims are known as primary evidence. Section 62 of the Indian Evidence Act, 1872, shines light on the primary evidence by mentioning that when a document is in various parts, every part of the document forms a part of the primary evidence. However, if a document is merely a xerox or a copy of the original work, it cannot be deemed as primary evidence of the original work. For example, a scriptwriter writes a script for a new web series and hands over several copies of it to the director and the cast of that series. The copies so handed over will not be deemed to be the primary evidence. Instead, the document whose copies were made and distributed will solely be considered as the primary evidence.

Examples Of Primary Evidence

Examples of primary evidence are mentioned as follows :

• Any original document is known as primary evidence. Examples include handwritten notes, business contracts, will of a dying person, rectification deeds, mortgage deeds, etc.
• When an eyewitness of the crime scene gives a testimony in the court of law, that is considered as primary evidence.
• When a physical object plays a crucial role in determining the culprit, as in any physical object related to the case, such as a weapon used in the murder or a painting used in the theft or forgery case, the same can be used as primary evidence.
• If any photographs, audio recordings, or video recordings are there of the time when the event or crime was occurring, the same shall be used as the primary evidence.

Understanding Primary Evidence

What Is Secondary Evidence?

When there is no primary evidence available for submission in the court, the parties rely on another form of evidence, known as the secondary evidence. Section 63 of the Indian Evidence Act, 1872 talks about the secondary evidence.

Examples Of Secondary Evidence

Examples of secondary evidence are mentioned as follows :

• Copies or reproduction of any document such as scanned copies, photocopies, etc are known as secondary evidence.
• When the original public records are not available, certified copies of such records are known as secondary evidence.
• When the complete version of original documents cannot be produced in the court, summaries or extracts of such documents presented in the court are known as secondary evidence.
• A witness giving a testimony where he is recalling the contents of documents or any event which he did not directly experience will qualify as secondary evidence.

Difference Between Primary And Secondary Evidence

Conclusion

It is extremely important to understand the difference between primary and secondary evidence as it affects the way the facts are presented in the court, assessed in the court and ultimately the manner in which the justice is administered by the court. Any person who is involved with the legal system, be it in the capacity of a lawyer, a judge, a plaintiff, a clerk, a defendant, etc., needs to have an in depth understanding of these two forms of evidence.

Primary evidence is generally used by the court in most cases unless they are not available because it is the most direct and reliable form of evidence. There are minimal chances of inaccuracies, tampering or manipulations. It sets the standard and other forms of evidence are measured against it. The courts follow the principle that the best available evidence must always be presented in the Court to ensure that the judges can assess the facts and verify the claims of both parties in a fair and objective manner.

Secondary evidence comes into picture only when primary evidence is not available. When we compare it against primary evidence, secondary evidence is less accurate and authentic. Hence, before using secondary evidence, it is necessary to establish the inaccessibility of primary evidence. Courts need additional safeguards such as certifications, expert analysis, etc to reduce the risks connected with the indirect nature of the secondary evidence. This helps in ensuring that even when primary evidence is not available to be produced in the court, the parties can produce secondary evidence which is reliable to the maximum extent possible.

Ultimately, the legal system aims to achieve a balance between flexibility and dependability by establishing guidelines for the presenting and examination of evidence. This arrangement maintains the highest standards of truth and impartiality while permitting the use of secondary evidence when needed. These kinds of steps are necessary to preserve public confidence in the legal system and guarantee that justice is administered fairly and effectively, independent of the conditions surrounding the evidence's accessibility.

About The Author:

Adv. Pranay Lanjile has been practicing and handling cases independently with a result oriented approach, both professionally and ethically and has now acquired many years of professional experience in providing legal consultancy and advisory services. He provides services in various field of Civil law, Family law cases, Cheque Bounce matters, Child Custody matters and Matrimonial related matters and drafting and vetting of various agreements and documents. Adv. Pranay enrolled with the Bar Council of Maharashtra and Goa in 2012. He is a member of the Pune Bar Association