Secondary Evidence — Meaning and When It Is Admissible (ss. 58, 60) — BSA (Law of Evidence) Notes

Secondary Evidence — Meaning and When It Is Admissible (ss. 58, 60)

A moneylender’s only proof of a loan is a signed acknowledgement — and it burns in a house fire. Is his claim dead? Not at all. The law is practical: when the original genuinely cannot be produced, it lets in the next-best thing — a copy, or even an oral account of what the document said. But (and this is where students lose marks) only after you first prove why the original is missing. Secondary evidence is a door with a key: the key is the reason the original is absent.

Secondary evidence is the fallback proof of a document’s contents, admissible only in the situations the Act specifies. Two sections: s. 58 says what secondary evidence is; s. 60 says when it may be given.

A. What secondary evidence IS — s. 58

Section 58 defines secondary evidence as “means and includes” the following — a closed-ended list you should be able to reproduce:

Certified copies given under the provisions of the Adhiniyam.
Copies made from the original by mechanical processes which in themselves ensure accuracy (photocopies, scans, printouts), 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 accounts of the contents of a document given by a person who has himself seen it.
Oral admissions (of the contents of a document — subject to the limits in s. 20).
Written admissions.
Evidence of a person who has examined a document and who is skilled in the examination of such documents (e.g. where the original is a mass of accounts).

So a photocopy, a certified copy, a counterpart against a non-signatory, and a witness’s account of what he read — all are secondary evidence.

B. When secondary evidence may be GIVEN — s. 60

This is the heart of the topic and the list the examiner marks clause by clause. Under s. 60, secondary evidence of the existence, condition or contents of a document may be given in the following cases:

Original in the wrong hands — clause (a). When the original is in the possession of — (i) the person against whom it is to be proved; or (ii) a person out of reach of, or not subject to, the process of the court; or (iii) a person legally bound to produce it who does not do so after notice. Here any secondary evidence is admissible (after notice, where notice applies).
Existence/contents admitted in writing — clause (b). When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is to be proved — then the written admission is admissible (and only that).
Original lost or destroyed — clause (c). When the original has been destroyed or lost, or the party cannot produce it in reasonable time for a reason not due to his own neglect or default — then any secondary evidence is admissible. (This is the burnt-document case.)
Original not easily movable — clause (d). When the original is of such a nature as not to be easily movable (an inscription on a wall, a tombstone) — any secondary evidence is admissible.
Original a public document — clause (e). When the original is a public document within s. 74 — a certified copy is admissible (and only a certified copy — see Topic 6).
Certified copy permitted by law — clause (f). When the original is a document of which a certified copy is permitted by the Adhiniyam or any law in force — a certified copy is admissible.
Numerous accounts — clause (g). When the original consists of numerous documents/accounts that cannot conveniently be examined in court, and the fact to be proved is the general result of the whole — the result may be proved by the evidence of a skilled person who has examined them.

Two points examiners reward. First, in cases (a), (c) and (d) any secondary evidence is allowed; in (b), (e) and (f) only a particular kind (the written admission, or the certified copy). Second, the foundational fact must be proved first — loss, destruction, possession-and-notice — before the copy is let in; you cannot skip straight to the photocopy.

C. A quick orientation (the 6W)

What — secondary evidence is copies, counterparts and oral/written accounts of a document (s. 58), let in only in the s. 60 cases.
Why — to prevent a just claim failing merely because the original is genuinely unavailable.
Who — the party who cannot produce the original, once he proves why.
When — only after the foundational fact (loss, destruction, possession + notice, public document, etc.) is established.
How — by tendering the appropriate secondary evidence: any kind in (a)/(c)/(d); the specific kind in (b)/(e)/(f)/(g).

🧩 WORKED EXAMPLE — the burnt document (photocopy)

Facts. A sues on a written agreement, but the original was destroyed in a house fire. He wants to produce a photocopy to prove its contents.

Rule. Under s. 60(c), where the original is destroyed or lost, any secondary evidence of its contents is admissible; a photocopy is secondary evidence under s. 58. But the destruction must be proved first (s. 59 keeps primary evidence the default).

Apply. A must first lead evidence that the original existed and was destroyed in the fire (through no neglect of his own). Once that foundation is laid, the photocopy — a copy made by a mechanical process — is admissible secondary evidence of the contents.

Conclusion. Yes, the photocopy may be produced, but only after the destruction of the original is proved. A photocopy tendered without accounting for the original is inadmissible.

Decoy. The trap is to say “a photocopy is not the original, so it is inadmissible”. That ignores s. 60(c): loss/destruction is exactly when secondary evidence is allowed.

Section 60, BSA 2023 (opening): “Secondary evidence may be given of the existence, condition or contents of a document in the following cases…” — including, in clause (c), “when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.”

In Simple Terms: Secondary evidence (a copy, a counterpart, or an account of the document) is the substitute the law accepts when the original is genuinely beyond reach — lost, destroyed, in the opponent’s hands, immovable, or a public document. But you must first prove the reason the original is missing; only then does the copy become admissible.

flowchart TD
    ROOT["Original NOT produced — secondary evidence? (s. 60)"]:::root
    ROOT --> A["(a) in opponent's / third party's hands<br/>(+ notice) → ANY secondary evidence"]:::leaf
    ROOT --> B["(b) contents admitted in writing<br/>→ the written admission only"]:::leaf
    ROOT --> C["(c) lost or destroyed<br/>→ ANY secondary evidence"]:::leaf
    ROOT --> D["(d) not easily movable<br/>→ ANY secondary evidence"]:::leaf
    ROOT --> E["(e) public document (s. 74)<br/>→ certified copy only"]:::diamond
    ROOT --> F["(f) certified copy permitted by law<br/>→ certified copy only"]:::diamond
    ROOT --> G["(g) numerous accounts<br/>→ skilled person's evidence of the result"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Ashok Dulichand vs Madahavlal Dube (1975) — secondary evidence of a document’s contents cannot be led unless the party first proves the existence and loss/destruction (or other s. 60 ground) of the original.
J. Yashoda vs K. Shobha Rani (2007) — the pre-conditions of s. 65 (now s. 60) must be satisfied before secondary evidence is admitted; a mere photocopy without laying the foundation is inadmissible.
H. Siddiqui vs A. Ramalingam (2011) — reiterated that a party seeking to lead secondary evidence must account for the non-production of the original by proof of one of the statutory grounds.

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