Indian Evidence Law | Updated October 2026
Section 104 Evidence Act: Burden of Proving Facts Required for Admissibility | BSA Section 107
Before certain evidence can be admitted, the party offering it must first establish a necessary preliminary fact. This evidentiary rule is now contained in Section 107 of the Bharatiya Sakshya Adhiniyam, 2023.
Current law: BSA Section 107Former law: Evidence Act Section 104Section 107 of the Bharatiya Sakshya Adhiniyam, 2023
The Bharatiya Sakshya Adhiniyam, 2023 (BSA), Act 47 of 2023, took effect on 1 July 2024. Section 107 is headed Burden of proving fact to be proved to make evidence admissible. It provides:
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
The provision assigns responsibility for proving a foundational or preliminary fact to the party relying on the evidence. If a fact must be established before another statement or document becomes admissible, that foundational fact must first be shown.
Section 170 of the BSA addresses repeal and savings, including the treatment of certain proceedings pending when the new Act commenced. The applicable procedural position should be checked for older cases.
Section 104 of the Indian Evidence Act, 1872
The former Section 104, titled Burden of proving fact to be proved to make evidence admissible, stated:
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
The central principle is continued in BSA Section 107. The old section number remains relevant to judgments, commentary and proceedings governed by the former enactment.
What Does the Burden of Proving a Preliminary Fact Mean?
Burden of proof is the legal responsibility to establish a fact. Admissibility concerns whether evidence may legally be received and considered by a court. A preliminary fact (sometimes called a foundational or condition-precedent fact) is a fact that must be established before particular evidence may be introduced.
- Identify the proposed evidence. A party seeks to rely on a statement, document or other material.
- Identify the legal condition. Another fact must be proved to make that material admissible.
- Prove that condition. The party seeking to introduce the material carries the burden of proving the necessary preliminary fact.
- Assess the evidence separately. Once admitted, the evidence still must be evaluated for reliability and probative weight.
Proof of the preliminary fact does not automatically prove the truth of the evidence itself or decide the case.
Original Statutory Illustrations
Illustration (a): Dying declaration
A wishes to prove a dying declaration by B. A must prove B's death.
Explanation: The statement is offered under a rule applicable to certain statements by a person who has died. The party relying on that statement must establish the fact of death. Other statutory conditions for admitting the particular statement must also be satisfied; merely showing death does not make every statement of the deceased admissible.
Illustration (b): Lost document and secondary evidence
A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.
Explanation: Before relying on secondary evidence on the ground that an original document is lost, A must establish the loss and meet the applicable statutory conditions. The court then assesses the secondary evidence and the weight it deserves.
Practical Applications in Court Proceedings
Example: Statement by a deceased person
In a dispute, a party seeks to rely on a statement made by someone who is no longer alive. The party must establish the person's death and demonstrate why the statement falls within a relevant statutory exception to the ordinary rules on hearsay.
Example: Missing original agreement
A claimant relies on a photocopy of an agreement because the original has been lost. The claimant must establish a legally sufficient basis for using secondary evidence, including the asserted loss where that is the ground relied upon. Producing a photocopy alone does not necessarily satisfy the law.
Example: Electronic record
Where the admissibility of a computer output depends on statutory requirements, the party relying on it must address the applicable conditions and certification requirements under the BSA. The precise requirements depend on the form of electronic evidence and the relevant provision.
Frequently Asked Questions
What is the current equivalent of Section 104 of the Indian Evidence Act?
Section 107 of the Bharatiya Sakshya Adhiniyam, 2023.
Who must prove the preliminary fact required for admissibility?
The person wishing to give the dependent evidence must prove the necessary preliminary fact.
Is proving a person's death enough to admit every statement they made?
No. Death may be a necessary foundational fact, but the statement must also satisfy the relevant statutory requirements for admissibility.
Can a photocopy be used when the original document is lost?
Secondary evidence may be available in circumstances permitted by law. A party relying on loss must prove the necessary foundation and comply with the applicable conditions.
Does admitting evidence mean the court must believe it?
No. Admissibility and evidentiary weight are separate questions.
Official Statutes and Further Reading
Consult the India Code official legislation database for the Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), particularly Sections 26, 104 to 107 and 170, and the former Indian Evidence Act, 1872, particularly Sections 101 to 104.
This article provides general legal information. The admissibility of any specific evidence depends on the facts, applicable law, procedural context and judicial assessment.