Jojy George Koduvath, Kottayam.

Is it Necessary to Produce Mobile Phone or Computer to Prove Electronic Evidence?

• The answer is, “Not Necessary”.
• Print-outs; Copies in CDs, Pen drives etc. are admissible.

S. 65B is an Enabling Provision. It Directs to ‘Deem‘ Copy to be “Original“

Sec. 65B, Indian Evidence Act is an express enabling provision to use a copy or print out (termed as ‘computer output’) in evidence as if it is original, inasmuch as Sec. 65B says that computer output (copy) shall be –

• “deemed to be also a document“, and
• admissible “without further proof or production of the original” as evidence of
  • any contents of the original or
  • any fact stated therein.

Relevant portion of Sec. 65B reads as under:

• Sec. 65B. Admissibility of electronic records-
  • (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is PRINTED ….. or COPIED ….. (hereinafter referred to as the computer output) shall be deemed to be also a document …. and shall be admissible ….. without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein….” 

S. 65B, Evi. Act Applies to Copy alone; and Not to Original Electronic Record

From Sec. 65B(1), as stated above, it is clear –

• Sec. 65B is invoked only when a ‘computer output’ (copy) is used in evidence; and it will not be applicable to (original) ‘electronic record‘.

The Supreme Court, in Anver PV v. PK Basheer, 2014-10 SCC 473, held as under:

• “24. …… If an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
• This observation is followed in Arjun Panditrao v. Kailash Kushanrao, (2020) 3 SCC 216).

Copy of E-mail, WhatsApp Chats, Facebook Posts etc. considered by Courts in India

Case	Contention	Observation of Court
Ambalal Sarabhai Enterprise v. KS Infraspace LLP Limited (AIR 2020 SC 307)	There was no concluded contract. Specific performance cannot be ordered.	The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidence-­in­-chief and cross examination. The e­mails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not.
Sailendra Kumar Goswami v. State of Assam, 2022 CrLJ 4694, 2022-237 AIC 506	Though the defamation matter on e-mail (placed in court by a copy), under Sec. 500 IPC, is proved with Sec. 65B-certificate as per Sec. 58, admitted facts need not be proved.	Certificate under sec. 65B is made mandatory, in view of Arjun Panditrao Khotkar, (2020) 3 SCC 216.
Rangaswamy v. State of Karnataka (2022)	The Nodal Officer of Vodafone Company provided, through e-mail, the call details of mobile phones and customer application forms, with certificate under Sec. 65(B).	However, in his cross-examination, he has admitted that he has not mentioned the location of the towers in the said mobile CDRs.
Zutti Engineering Solutions Pvt.  Ltd.  v. M.  Vignesh (2019) High Court of Telangana	Copy of e-mail conversations between plaintiff and defendant was sought to be marked. Trial Court dismissed the prayer to mark the same without giving reasons.	In revision, the High Court allowed to receive the copy in evidence if the petitioner complied with Section 65B of the Evidence Act, subject to proof and relevance.
S @ S v. C P (2018) High Court of Delhi	The respondent filed print-outs from the ‘Facebook‘ page of the petitioner. She has also filed certain recorded telephone conversations in two CDs with transcripts. counsel for the petitioner raised objections as to non compliance of  provisions of section.	Printouts from the Facebook – only show that one Deepa is acquainted with the petitioner but there is no indication of any objectionable relationship. Telephonic conversations in the CDs do not refer to any demand of dowry.
Shyam Investments v. Masti Health And Beauty Pvt Ltd. (2020 – High Court of Madras)	The printout  of the websites of the plaintiffs and defendant produced along with the certificate under Section 65B. Also print out of registration certificates of the marks also filed supported by the affidavit under Section 65B.	Printout  of the websites accepted (in the Trade Mark/passing off matter). Held – the plaintiffs were entitled for damages as sought for. Injunction was also granted.
Sanjib Sarkar v. Rajasree Roy, AIR  2022 Cal- 12	Secondary evidence of Facebook messages is admissible if only there is a certificate under Sec. 65B (4). Oral evidence in support of it by the wife (in the matter of annulment of marriage on the ground of fraud) was not enough.	The wife argued that the secondary evidence was supported by evidence in primary form by her.  The finding of the trial court was confirmed, as it was admitted by the appellant that the evidence was sourced from the “the original electronic device owned by” the wife.
Kadar Nazir Inamdar v.  State of Maharashtra (2022)	Alleged Facebook conversation (Secondary evidence) is wholly untenable as there is no material to show the retrieval of the data by the Investigating Officer. Nor a certificate under Sec. 65B is produced.	The submissions about the authenticity and genuineness of Facebook chat do not deserve countenance at this stage. The question of admissibility would be a matter of trial.
Rakesh Kumar Singla v. Union Of India, 2021-1 RCR(CRI) 704, 2021-3 Cri CC 452	Screen shots of Whatsapp messages available with the NCB, which would connect the petitioner with the said contraband.	Narcotics Bureau would always be at liberty to rely upon the Whatsapp messages after due compliance of provisions of Section 65-B of the Indian Evidence.
Priyanka Singh v. State of Maharashtra, 2021 All MR(Cri)  1276, 2021-3 Cri CC 110, 2021-4 BCR(Cri) 393	Petitioners prayed for quashing of the FIR, in the matter related to alleged suicide by a late actor. Printouts of Whatsapp chats were produced along with the complaint.	The printouts of Whatsapp chats showed that there was no whatsapp chats at the relevant time within the proximate date and time. FIR qua second petitioner was quashed and set aside.
Abhishek Tripathi v. Smt.  Aparna Tripathi (2022), Chhattisgarh High Court	Print-out of Whatsapp chat, between husband and wife, is not admissible in evidence under the provisions of Sec. 65B unless and until it bears certificate.	Court granted bail, acting upon the Whatsapp.
Kumari Chaithra v. State of Karnataka  (2022)	Whatsapp chat (Secondary evidence) is not proved by a certificate under Sec. 65B is produced. It is necessarily to file the certificate (while filing the charge-sheet).	While considering the bail petition, Court exercising the discretion, can consider the Whatsapp messages, to find the relation between the parties, in a sexual offence matter. Certificate is required while marking the documents.
Ambika Roy v. Honble Speaker, West Bengal Legislative Assembly (2022)	The Speaker (in the steps for disqualifying a BJP-MLA for joined the TMC) illegally rejected of the following evidence produced with the certificate u/s 65B – Printouts of Tweets, Facebook page of AITC, Video recording of the press conference and screenshots of Twitter handle of AITC.	If the Speaker found a certificate under Sec. 65-B to be defective, then it had to summon the person referred to Sec. 65-B. It was necessary for the Speaker to duly take into account the certificate given by the petitioner before rejecting the electronic evidence as inadmissible.

Presumption as to Electronic Messages – Presumption as to Originator

Sec. 88A of the Evidence Act reads as under:

• “88A. Presumption as to electronic messages – The 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 the Court shall not make any presumption as to the person by whom such message was sent.
• Explanation – For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000).”

On analysis following matters emerge from Sec. 88A-

• Presumption under Sec. 88A is optional.
• It relates to an electronic message, forwarded by the originator.
• It must have been forwarded through an electronic mail server to the addressee.
• The presumption is (only) that the purported message forwarded by the originator to the addressee corresponds with the message that is fed into his computer.

Sec. 88A, by itself, does not give a presumption-

• (i) that the purported message fed into his computer had reached the addressee (such a presumption can be drawn from Sec. 114 Evid. Act)
• or,
• (ii) that the purported message has been seen or read by the addressee.
  • Note, Sec. 88A itself says “the Court shall not make any presumption as to the person by whom such message was sent“.
  • Therefore, it is possible to expostulate – without some additional evidence (or some additional presumption) it is not proper to take a presumption that the message sent to the ‘office of the addressee’ is seen by the addressee.
  • In other words, the degree of presumption as to (reading) a message sent to a personal device (computer or mobile phone) of one person will be higher when compared to a message sent to his ‘office’.

Email sent by the Accused found Proved in 2016 Cri. LJ 1159 (Cal)

Analysing Section 88A of the Evidence Act and the relevant provisions of the Information and Technology Act, it is observed in Abdul Rahaman Kunji vs The State Of West Bengal, 2016 CriLJ 1159 (Cal), that the e-mails were admissible in evidence. The court acted upon the presumption under Sec. 88A.  It was found that the e-mails were proved and that the accused/appellant was the originator of the e-mails and that he had participated in the crime of abduction in equal measure as the others. It was observed as under:

• “It is apparent that the Court may presume the veracity of the message fed into the computer for transmission by the originator through his mail server to an addressee, that is, the person who is intended by the originator to receive the electronic record and does not include any intermediary. However, this is a rebuttable presumption. Besides, no presumption can be drawn about the person who has sent such a message. Therefore, even if we accept the fact that these e-mails have been downloaded as stated by the Webel expert or sent by using the e-mail address of Akib Ali, it was necessary for the prosecution to prove that Akib Ali was in fact the originator of these e-mails. The disclosure, if any, made by Akib Ali of the e-mail address and password would have to be made under Sec. 27 of the Evidence Act. PWs 118 and 132 (expert and IO) have both stated that Akib Ali has disclosed his e-mail identities and passwords in their presence. They have signed the seizure list under which the e- mails accessed from these accounts and printed have been seized. Therefore, in our opinion, these e-mails are admissible in evidence.”

It was also pointed out by the High Court that besides denying everything in the statement recorded under section 313 CrPC, the accused has not given any specific explanation about his e-mail accounts and passwords or about the contents of the e-mails.

What Type of Copies Can be Used as ‘Computer Outputs’ under Sec. 65B?

As shown above, by virtue of Sec. 65B of the Evidence Act, a computer output (i.e. copy or print-out of an electronic record) is deemed to be also an (original) document. For proving the ‘computer output’ (copy or print-out), Sec. 65B directs that the Certificate, as provided under subsection (4), is essential. The ‘computer output’ (copy) can be-

• Print-outs,
• CDs, Pen drives etc. and
• Screenshots.

The Information Technology Act, 2000 (No. 21 of 2000) defines ‘Electronic Record’ as under:

• “ ‘Electronic Record’ means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.”

What should be the Contents of the Sec. 65B Certificate

Sub Sections 2 and 4 of Sec. 65B are the crucial provisions. They read as under:

• “(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
  • (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
  • (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
  • (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
  • (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.”
• “(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—
  • (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
  • (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
  • (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
• and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

From Sub Sections (2) and (4) of Sec. 65B, it is clear that the certificate must refer to the following aspects –

• the computer was used regularly to store or process information;
• the activities were regularly carried on over that period;
• they were done by a person having lawful control over the computer;
• the information was regularly fed into the computer;
• it was in the ordinary course of the said activities;
• the computer was operating properly (if not, give details);
• the information was fed in the ordinary course of the activities.
• the electronic record must be identified
• the manner in which it was produced;
• particulars of device involved in the production of that electronic record.

Who can Give Certificate under Sec. 65B?

Sec. 65B(4) reads as under:

• “(4) In any proceedings where it is desired to give a statement in evidence … … a certificate doing any of the following things, that is to say,—
  • (a)… (b)…. (c) ….
• and purporting to be signed by a person occupying a responsible official position in relation to
  • the operation of the relevant device or
  • the management of the relevant activities (whichever is appropriate)
• shall be evidence of any matter stated in the certificate; and
• for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

Basing on Sub-section (4) of Section 65B, it is made clear in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216 –

• The 65B(4) certificate can be given by-
  • (1) anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device,
  • (2) a person who may otherwise be in the ‘management of relevant activities’, and who can give the certificate to the “best of his knowledge and belief”.
• See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.

Time for Producing Sec. 65B(4) Certificate

The Sec. 65B(4) Certificate can be given ‘long after the electronic record has actually been produced by the computer’. In Arjun Panditrao it is also pointed out as under:

• “An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it.”
• See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.

Court-Jurisdiction to Order Production of a Certificate

Our Apex Court referred to in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216, the following provisions of law that enables a court to order (on the request of the parties to the proceedings or on its own) production of Sec. 65B(4) Certificate –

• 1. The Indian Evidence Act, Section 165. It empowers a Judge to order production of any document or thing in order to discover or obtain proof of relevant facts; 
• 2. The Civil Procedure Code, Order XVI – Rule 6, 7, and 10. (R. 6 pertains to Summons to produce document; R. 7 – Power to require persons present in Court to give evidence or produce document; and R. 10 – Procedure where witness fails to comply with summons).
• 3. The Code of Criminal Procedure, Sec. 91 and 349. (s. 91 discusses as to Summons to produce document or other thing; s. 349 – Imprisonment or committal of person refusing to answer or produce document).

Should the ‘Correctness’ of Copy or Print-out Must be Proved?

No.

S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put; because,  S. 65B(5)(c) lays down-

• ‘a computer out-put shall be taken to have been produced by a computer’. 

Sec. 65B(5)(c) reads:

• ‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.
  • (Note: Sec. 65B(5)(c) stands incongruent to to Sec. 65B(2) which reads as under: “(2). The conditions … in respect of a computer output shall be the following, namely:—(a) the computer output containing the information was produced by the computer … (which) was used regularly to store or process information …. over that period by the person having lawful control over the use of the computer …..“

Post Circulated/Forwarded on WhatsApp Platform/Group – Not a ‘Document’

In National Lawyers Campaign for Judicial Transparency and Reforms v. Union of India, 2019 (Delhi High Court) the petition made very serious allegations has been filed merely based on a post allegedly circulated on WhatsApp group. Counsel for the petitioner submitted that in terms of Section 154 of the Code Criminal Procedure, 1973 any information, which was provided to the police, was sufficient to set the criminal process into motion. The High Court responded as under:

• “I am unable to accept this contention, in as much as, in the present case, the petitioners, very candidly admit that they are not privy to any information. What they believe to be information is a post circulated on WhatsApp platform or an alleged translation in a website. The alleged information is not claimed to be true to their knowledge. It is not even stated in the petition as to how the petitioners have formed a reasonable belief that the alleged post or the translation could be true or have any basis.”
• “Annexure – A (forwarded message) does not even qualify as a document in terms of the Evidence Act, 1872, in as much as, neither the original nor the copy of the original has been produced. It is an admitted position that the petitioners have not seen original and have had no occasion to even compare Annexure – A with the original.”

“What is Evidential Value of WhatsApp Messages these days?“

The chats, that were done prior to a written agreement in a commercial transaction, are extrinsic evidence and hence, ordinarily, they are not relevant. Oral statements as regards the contents in a document are also liable to be eschewed, in law. Further, Sec. 93 and 94 of the Evidence Act speak as to exclusion of evidence (i) intend to ‘explain or amend ambiguous document’ and (ii) ‘against application of the document to existing facts’. It is profitable to refer the Supreme Court decision in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, which reads as under:

• “The grounds of exclusion of extrinsic evidence are:
• (i) to admit inferior evidence when law requires superior would amount to nullifying the law,
• (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

It is seen that, in the hearing of A2Z Infraservices Ltd. v. Quippo Infrastructure Ltd., on 14 July 2021, the Apex Court (Chief Justice NV Ramana and Justices AS Bopanna and Hrishikesh Roy) pointed out this legal position as under:

• “What is evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don’t attach any value to the WhatsApp messages,”

Following are the Landmark Cases of the Supreme Court on Sec. 65B

• Supreme Court dealt with CCTV footage (copy) in the following cases:
  • State (NCT of Delhi) v. Navjot Sandhu, 2005-11 SCC 600,
  • Tomaso Bruno v. State of UP, 2015-7 SCC 178.
• CDs/VCDs in respect of video recording by the Election Commission
  • Arjun Panditrao v. Kailash Kushanrao, 2020-3 SCC 216.
• CDs containing election speeches and songs, in:
  • Anvar PV v. PK Basheer, 2014-10 SCC 473.
• Call Detail Records – CDR – of mobile phones,in:
  • Sonu v. State of Haryana, 2017-8 SCC 570.
• Tape recorded conversation on the landline phone, in
  • Vikram Singh v. State of Punjab, 2017-8 SCC 518.
• Propriety of videography of the scene of crime or scene of recovery during investigation, in:
  • Shafhi Muhammed v. State of HP, 2018-2 SCC 801.

End Notes:

See Blog: Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Where truth is in issue mere marking does not absolve duty to Prove Truth

• Where truth of a document is in issue, marking without objection does not absolve the duty on the concerned party to prove the truth.

Whether Proof of Admitted Documents Includes ‘Truth’ of its Contents

Sec. 58 of the Evidence Act says that ‘Admitted facts need not be proved’. Order VIII, Rule 5 CPC stipulates that every allegation of fact in the plaint, if not denied specifically or by necessary implication, shall be taken to be admitted except as against a person under disability.

Effect of marking a document without formal proof (on admission or without objection) brings-about divergent views.

First view	Admission of contents; and, it dispenses with proof as to truth. (It is on the proposition that proof includes ‘truth of contents’.)
Second View	Admission of contents; but, it does not dispense with proof (as to both ‘existence’ and ‘truth’).
Third view	If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
Fourth view	Admission of contents of a document may dispense with proof (as to both ‘existence’ and ‘truth’); but its PROBATIVE VALUE will be a matter for the court, and the proof as to truth is left to the discretion of the court. In proper cases court can presume truth.
Fifth view	Court should require  the party producing the document to adduce proper evidence, and to cure formal defects.

Objection to be Raised When Document is Admitted; Otherwise, Opportunity Lost

It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:

• “When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”

But, the subsequent decisions in RVE Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7  SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.

Privy Council in Padman v. Hanwanta, AIR 1915 PC 111,held that the objection to marking of documents and its admissibility should have been taken in the trial court. It was observed as under:

• “The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar’s office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention.”

In P.C. Purushothama Reddiar v. S Perumal, 1972 (2) SCR 646,it was observed as under:

• “Counsel contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.”

Our Apex Court held in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, as under:

• “24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548.”

PROBATIVE VALUE of a Document is a Matter for the Court

Etymology of ‘Probative’ is from ‘Probare’ (Latin), means to prove; and ‘Probatio’ (Latin), means experience, proof, testing, probation etc. In law, ‘probative value’ imparts –

• Sufficiency of evidence to prove something in a trial.
• Probability of proof or truth while appreciating a fact.
• Value or weight of evidence, considered by the court, in proof of something.
• Extent of evidentiary value that can be taken to prove a proffered proposition.

Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine. It is important to note that probative value may ‘include’ truth of contents of documents; but, precisely it is independent from ‘truth’ of contents of documents.

Presumption as to truth

• Presumption as to truth of the contents of a (proved) document can be invoked in proper cases. Official record is taken as correct on the presumption that the entries thereof are made only after satisfying its truth.

Admissibility of a Document is One Thing and its Probative (Proof) Value Quite Another

Admittance of documents in evidence, and its proof are two different matters. In Baldeo Sahai v. Ram Chander, AIR 1931 Lahore 546, it is held as under:

• “There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents proved and formally tendered in evidence. The word “proved” has been used by the Division Bench in the sense of ‘proposed to be proved’ as is clear from its having been used along with the word ‘tendered’ or “admitted” in evidence. The word proved has been loosely used for describing the stage after fling of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. As stated hereinabove, the stages of tendering/admitting/rejecting in evidence and holding a document proved – are two distinct and different stages, not one. They are respectively the second and third stages. Admission of a document in evidence is not to be confused with proof of a document.”

Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758 – Victim in a murder case had been admitted in the hospital with burns. The dying declaration was recorded by the Doctor.  The original dying declaration had not been filed by the prosecution and the carbon copy was produced. The Doctor deposed that even after conducting an extensive search, the original dying declaration could not have been traced. Pointing out that the secondary evidence can be adduced in any form, provided it is authenticated by foundational evidence that the alleged copy is in fact a true copy of the original, the Apex Court held as under:

• “Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document 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. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal & Anr. v. M.S.S. Food Products, (2012) 2 SCC 196).

In Rasiklal Manikchand Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196, it was held as under:

• “Proviso appended to sub-rule (1) of Rule 4 of Order XVIII further clarifies that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the order of the court.”

In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:

• “Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.” (Quoted in: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492)

E.g. – A per se ‘objectionable document’ marked without objection; un-cross-examined testimony of a witness; Photocopy of a deed certified copy of which is provided in law.

In Life Insurance Corporation of India v. Rampal Singh Bisen, (2010) 4 SCC 491, it is held as under:

• “26. We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.
• 27. It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
• “31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court.”

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