Jurisprudence, Interpretation and General Laws · Law relating to Evidence

Oral, Documentary and Secondary Evidence under the BSA 2023

Updated 11 October 2026 · Fact-checked

Oral evidence must be direct: the witness must have seen, heard or perceived the fact. The contents of a document are proved by primary evidence (the document itself) or, only in the cases listed in section 60, by secondary evidence. Section 94 excludes oral evidence of the terms of a written contract.

Understand Oral and Documentary Evidence and Secondary Evidence

Evidence in court reaches the judge in two ways: through witnesses (oral evidence) and through documents. The Bharatiya Sakshya Adhiniyam, 2023 (BSA) sets separate rules for each.

For oral evidence, section 54 says all facts, except the contents of documents, may be proved orally. Section 55 says oral evidence must be direct. If it refers to a fact that could be seen, the witness must say he saw it. For a fact that could be heard, he must say he heard it. For any other sense, he must say he perceived it that way. For an opinion, the person holding the opinion must give it, with his grounds. So hearsay is not accepted as oral proof.

The contents of a document cannot be proved by a witness's memory. Section 56 says contents may be proved by primary or secondary evidence. Section 59 says documents must be proved by primary evidence, except in the cases the Adhiniyam mentions. Section 57 defines primary evidence as the document itself produced for the inspection of the Court. Each part of a document executed in several parts is primary. Each counterpart is primary against the parties who executed it. Copies made by one uniform process, such as printing, are primary evidence of each other, but not of their common original.

Section 57 also treats electronic records. Each file where a record is stored simultaneously or sequentially in multiple files is primary evidence. So is a record produced from proper custody, unless it is disputed. Each automated storage in a computer resource, including temporary files, is primary evidence.

Secondary evidence is listed in section 58. It includes certified copies, copies made by mechanical processes that ensure accuracy, copies compared with the original, counterparts against parties who did not execute them, oral accounts by a person who has seen the document, oral and written admissions, and the evidence of an expert who has examined voluminous accounts. Section 60 says when you may use it. Section 64 requires notice to the other side in some of those cases. Section 94 then shuts out oral evidence once the terms of a contract, grant or disposition of property are in a document.

Key rules to remember

Oral evidence must be direct (section 55): Seen fact → witness who saw it; heard fact → witness who heard it; other sense → witness who perceived it; opinion → the person holding it; Two provisos: a treatise on expert opinion may be proved by production if the author is dead, cannot be found, is incapable, or cannot be called without unreasonable delay or expense. For a material thing other than a document, the Court may require its production for inspection.
Oral evidence scope (section 54): All facts, except the contents of documents, may be proved by oral evidence; Contents of documents go through sections 56 and 59.
Proof of documents (sections 56 and 59): Contents proved by primary or secondary evidence; documents proved by primary evidence except in the cases mentioned; Primary is the rule. Secondary is the exception.
Primary evidence (section 57): Primary evidence = the document itself produced for inspection of the Court; Explanations cover documents in several parts, counterparts, uniform-process copies and electronic records.
Secondary evidence (section 58): Certified copies; accurate mechanical copies and copies compared with them; copies made from or compared with the original; counterparts against non-executing parties; oral account by one who saw it; oral admissions; written admissions; expert on voluminous accounts; An oral account of a copy, or of a photograph or machine-copy, is not secondary evidence of the original (illustration (d)).
Cases for secondary evidence (section 60): (a) original with opponent, person out of reach of process, or person legally bound to produce it, who does not produce it after notice; (b) written admission of contents; (c) original destroyed or lost, or cannot be produced in reasonable time, not by own default; (d) not easily movable; (e) public document under section 74; (f) certified copy permitted by law; (g) numerous accounts, general result; Explanation: in (a), (c), (d) any secondary evidence is admissible; in (b) the written admission; in (e) and (f) only a certified copy; in (g) evidence of a skilled person who examined them.
Notice to produce (section 64): Notice needed for section 60(a) cases, unless dispensed with; No notice if the document is itself a notice, the adverse party must know he will have to produce it, he got it by fraud or force, he or his agent has it in Court, he admitted its loss, or the holder is out of reach of the Court's process. The Court may also dispense with it.
Exclusion of oral by documentary evidence (section 94): Where terms are reduced to a document, only the document, or admissible secondary evidence of it, may prove them; Exceptions: public officer's appointment, and wills admitted to probate. Oral evidence of other facts mentioned in the document is allowed.

How to solve Oral and Documentary Evidence and Secondary Evidence questions

Use this method for any problem on proving a fact or a document.

1Identify what is to be proved: a fact, or the contents of a document. Facts other than contents go by oral evidence under section 54. Contents go by sections 56 and 59.
2If oral evidence is offered, check directness under section 55. Ask whether the witness saw, heard or perceived the fact himself.
3If a document is involved, ask whether the original is produced. If yes, it is primary evidence under section 57. Check the Explanations for parts, counterparts, copies and electronic records.
4If the original is not produced, find the matching clause of section 60 (a) to (g) on the facts.
5Check the kind of secondary evidence allowed for that clause under the Explanation to section 60, and match it with the kind offered under section 58.
6For clause (a), check whether notice under section 64 was given, or whether a proviso excuses it.
7If the document records a contract, grant or disposition of property, apply section 94 to test any oral evidence of its terms. Then conclude clearly.

Quickest way: Three-question filter

When to use it: When time is short and the problem asks if a copy or an oral statement is admissible.

Q1: Is it the contents of a document? If no, oral evidence is fine if direct (sections 54 and 55).
Q2: Is the original produced? If yes, primary evidence. Stop.
Q3: If no, name the section 60 clause and check the permitted type of secondary evidence and the section 64 notice. Then write the conclusion.

Common mistakes in Oral and Documentary Evidence and Secondary Evidence

Treating a photocopy or any copy as primary evidence.
A copy looks identical to the original.
Fix: Primary evidence is the document itself. Only uniform-process copies are primary of each other, not of their common original.
Allowing any kind of secondary evidence in every section 60 case.
Students remember the clauses but skip the Explanation.
Fix: In clauses (e) and (f) only a certified copy is admissible. In (b) it is the written admission. In (g) it is the evidence of a skilled examiner.
Forgetting the section 64 notice in clause (a) cases.
Focus is on the clause, not on its condition.
Fix: Clause (a) applies only if the person does not produce the document after notice. Then check the provisos that excuse notice.
Saying oral evidence can never be given where a document exists.
Section 94 is overstated.
Fix: Section 94 bars oral evidence of the terms of a contract, grant or disposition reduced to a document. Oral evidence of other facts stated in it is allowed, as with a receipt and the fact of payment.
Calling an oral account of a photocopy secondary evidence.
Oral accounts are listed in section 58.
Fix: Only an oral account by a person who has himself seen the original counts. Illustration (d) rules out an oral account of a copy, photograph or machine-copy.
Citing the repealed Indian Evidence Act, 1872.
Older books use its section numbers.
Fix: Cite the Bharatiya Sakshya Adhiniyam, 2023, in force from 1 July 2024, with its section numbers.

Worked examples

Example 1

Ravi sues Mehta Traders in Pune on a written agreement for supply of goods. The original is with Mehta Traders. Ravi gave them a notice to produce it, but they did not. Ravi offers a photocopy. Is it admissible?

Show the solution

Provision: section 59 requires primary evidence, but section 60(a)(i) allows secondary evidence when the original is in the possession of the person against whom it is to be proved and he does not produce it after notice under section 64.
Facts: the original is with Mehta Traders, the opposing party. Ravi gave notice to produce it. They did not produce it.
Type of evidence: under the Explanation to section 60, for clause (a) any secondary evidence of the contents is admissible. A photocopy qualifies, provided it is a copy under section 58, for example one made by a mechanical process that ensures accuracy.
Conclusion on notice: section 64 notice was given, so the condition is met.

Answer: The photocopy is admissible as secondary evidence under section 60(a)(i), as notice under section 64 was given and the original was not produced.

Example 2

Anita and Kiran signed a written lease for a shop. Kiran claims in court that Anita orally agreed to a lower rent, which is not in the lease. Is this evidence admissible?

Show the solution

Provision: section 94 says that when the terms of a contract or disposition of property are reduced to a document, no evidence shall be given of the terms except the document itself, or admissible secondary evidence.
Facts: rent is a term of the lease, and the lease is written. Kiran offers oral evidence to prove a different term.
Application: the oral evidence would prove the terms other than through the document. None of the exceptions to section 94 (public officer's appointment, probated wills) applies.
Contrast: Explanation 3 allows oral evidence of a fact other than those referred to in section 94, such as payment of an unrelated earlier debt. A different rent is not such a fact.

Answer: The oral evidence of a lower rent is not admissible under section 94. The lease document itself is the only proof of its terms.

Exam tips

Write in this order: provision, facts, conclusion. Name the Act as the Bharatiya Sakshya Adhiniyam, 2023, and cite the section.
Learn the seven clauses of section 60 as a list, with the Explanation that matches each clause. Examiners test the match between clause and type of secondary evidence.
Learn the section 64 provisos by their key words: notice itself, must know, fraud or force, in Court, loss admitted, out of reach.
For difference questions, use two columns in words: primary is the document itself and the rule; secondary is a substitute, allowed in listed cases.
Add the electronic record Explanations of section 57 to show you know the new Adhiniyam.

Practice questions from Law relating to Evidence

Oral and Documentary Evidence and Secondary Evidence: frequently asked questions

What is the difference between primary and secondary evidence under the BSA 2023?

Primary evidence is the document itself produced for the Court's inspection (section 57). Secondary evidence, listed in section 58, includes certified copies, compared copies and oral accounts by someone who saw the original. Documents must be proved by primary evidence except in the cases section 60 allows.

When can secondary evidence be given under section 60?

It can be given in seven cases: original with the opponent or another person who does not produce it after notice, written admission of contents, original lost or destroyed, original not easily movable, public document, document of which a certified copy is permitted, and numerous accounts where the general result is to be proved.

Is notice always required before giving secondary evidence?

No. Section 64 requires notice only for the cases in section 60(a). Even there, notice is not required in the cases listed in the provisos, or where the Court thinks fit to dispense with it.

Can oral evidence ever vary a written contract?

Section 94 bars oral evidence of the terms of a contract, grant or disposition of property reduced to a document. Oral evidence is still allowed for other facts the document merely states, as in illustrations (d) and (e) of section 94.