Report No. 69

III. Various Clauses Considered

29.23. Section 63(1) and 63(2).-

We now proceed to a consideration of the existing clauses of section 63. No changes are needed in the first two clauses, dealing with certified copies and mechanical copies respectively.

29.24. Section 63(3).-

As regards section 63(3), which deals with compared copies, it has been held that a paper-book is not admissible as secondary evidence unless it is proved that the papers were printed after 'comparison with the original. It would appear that such copies can fall, if at all, only under clause (3) and that clause postulates that the copies must be made from or compared with the original Although, ordinarily, one may presume that a copy printed in the paper-book was compared with the original, it must be stated that the accuracy of such copy depends on so many factors. For this reason, the clause may be left undisturbed.

29.25. Section 63(4).-

With regard to section 63(4), which deals with counterparts, it may be stated that a counterpart is primary evidence against a person executing it.1 Under section 63(4), as against parties who did not execute them, counterparts are secondary evidence.

1. Section 62, Explanation 1.

29.26. Section 63(5).-

In regard to section 63(5) which makes admissible oral accounts of the contents of a document given by some person who has himself "seen" the document, it will suffice to observe that the most important requirement under this clause is that person must have seen the document in original; and, as was held in a Bombay case,1 where the person in question was given a written statement of the contents of copy of a document the original of which was not seen by him, it cannot come within this clause.

1. Kanyaha Lal v. Piarabai, 1882 ILR 7 Born 139.

29.27. Section 63(5)-Oral accounts of the contents of a document.-

We do not propose any change on the above point. But there is a verbal point concerning section 63(5) which may be mentioned. The clause speaks of "oral account of the contents of a document," given by some person who has himself "seen" it. It has been held by the Privy Council1 that the person concerned must have read the document. This interpretation should be suitably codified, since this is not very clear from the wording.

1. Ma Mi v. Kallanther Ammal, AIR 1927 PC 15.

29.28. Recommendation to amend section 63(5) by adding the words and read.-

Accordingly, we recommend that in section 63(5), for the word "seen", the word "read" should be substituted.

IV. Other Points of Detail

29.29. Section 63-Judgments as secondary evidence of pleadings.-

We have now concluded our consideration of the various clauses of section 63. A few new points relevant to the scope of "secondary evidence" may be dealt with. The question as to how far judgments can be treated as secondary evidence of the pleadings of the parties etc. may be conveniently considered at this stage. The answer to this question is not free from difficulty. In some cases1, the judgment has been treated as inadmissible. In several cases, however, a judgment has been admitted to prove an admission or acknowledgment made by a party in his pleadings in the previous suit.2

1. Nanduri Saradamba v. Parakala Pattabhiromayya, AIR 1931 Mad 207.

2. (a) Lakshman Govind v. Amrit Gopal, ILR 24 Born 591 (598, 599), (Parsous & Hanade, JJ.).

(b) Krishanaswamy Ayyangar v. Rajngopalan Ayyangar, 1895 ILR 18 Mad 73 (77.78 section 35 cited).

(c) S.K. Ramaswamy Coundan v. S.N.P. Subbaraya Coundan, AIR 1948 Mad 388 (390), para. 5.

29.30. A judgment narrating the substance of the pleadings has also been used to furnish evidence of the allegation.1

1. (a) Kailas Chandra Nag. v. Bijay Chandra Nag, AIR 1923 Col 18; (b) Kundan Bibi v. Magan Lal, AIR 1932 AB 710.

29.31. But it should be pointed out, that judgments cannot be appropriately regarded as falling under any of the five categories mentioned in section 63. If they are to be admissible, that could only be on a view that section 63 is not exhaustive. But that itself is a matter of controversy.1

1. See discussion as to whether section 63 is exhaustive.

29.32. The position in this regard could become clear if the verbal change1 which we have discussed in the opening part of section 63, to replace the words "means and includes" by "means", could be implemented.

1. See discussion relating to section 63, opening part.

29.33. Section 63- Admissibility of tape-recording.-

While on section 63, we may refer to the subject of tape-recording which has figured in some cases. The Supreme Court has held1 that if a statement is relevant, then an accurate tape-record of the statement is also relevant and admissible. In case before the Supreme Court, the appellant had been convicted of an offence under section 165-A of the Indian Penal Code. A trap had been laid, and a tape-recorder had been used to record the conversation between the accused and the complainant. The Supreme Court held:

"If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be "Properly identified. One of the feature of magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with Lok Sabha".

1. Yusafali v. State of Maharashtra, AIR 1968 SC 147 (149, 150).

29.34. In an earlier Supreme Court case,1, with regard to the contention that these could be tampered with, the majority held that:

"In the ultimate analysis, the factor mentioned would have a bearing only on the weight to be attached to the evidence and not on its admissibility."

1. Pratap Singh v. State of Punjab, AIR 1964 SC 72 (86) (S.K. Das, Subba Rao and Ayyanger, JJ.).

29.35. The minority opinion in the same case1 held-

"The tape recorded conversation between the appellant and the other person talking with him can only be corroborative evidence, of the appellant that the other persons had made such and such statements, but cannot be direct or primary evidence that the third person had stated what the other speaker had told the appellant.

"The High Court did not rely on the renderings of the tape-recorded conversation in view of the fact that such tape-recordings can be tampered with. Tape recordings can be legal evidence by way of corroborating the statements of a person who deposes that the other speaker and he carried on that conversation or even of the statement of a person who may depose that he over-heard the conversation between the two persons and what they actually stated had been tape recorded."

The position emerging from the above decisions does not appear to call for an amendment of the law.

1. Pratap Singh v. State of Punjab, AIR 1964 SC 72 (101) (Raghubar Dayal and Mudholkar,

V. Stamp

29.36. Stamp duty.-

The question of stamp duty has a bearing on the admissibility of secondary evidence.1 But this is a matter outside the Evidence Act.

1. (1972) 1 SCC 545 (549).

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