Primary evidence is the best or highest evidence; in other words, it is the kind of proof which, in the eyes of the law, affords the greatest certainty of the fact in question. Until it is shown that the production of primary evidence (i. e., the original document) is out of the party’s power, no other proof of the fact is, in general, admitted. All evidence falling short of this in its degree is termed secondary.
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Primary evidence of a transaction, evidenced by writing, is the document itself, which should be produced in original to prove the terms of the contract, if it exists and is obtainable. Secondary evidence of the contents of a written instrument cannot be given, unless there is some legal excuse for non-production of the original.
ADVERTISEMENTS:
This is based on the principle that the best evidence of which the subject is capable ought to be produced or its absence be reasonably accounted for or explained, before secondary evidence (which is inferior) is admitted.
It may be noted that the party who wishes to give secondary evidence must lay the foundation for reception of the secondary evidence. The burden of proof to show that the secondary evidence is admissible is on him. “If the foundation was not laid for reception of the secondary evidence under section 65, the alleged copy produced should be excluded from consideration.” (Sital das v. Sant Ram, (1954, S.C. 606)