Indian Evidence Act, 1872 · Chapter VII: Of the Burden of Proof
Section 104: Burden of proving fact to be proved to make evidence admissible
The Indian Evidence Act, 1872 was repealed and replaced by the Bharatiya Sakshya Adhiniyam, 2023 from 1 July 2024. It still applies to matters and proceedings from before that date, as the repealing law provides.
In plain words
The burden of proving a fact that must be shown before evidence of another fact can be given lies on the person who wants to give that evidence.
Example: A wants to prove B's dying declaration. A must prove B's death.
A simplified explanation, prepared with AI assistance from the official text below and checked automatically against it for numbers and cross-references. The official text is the law and prevails over this summary. Not legal advice.
Read the in-depth explanation, with key Supreme Court rulings ↓
Official text
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.
Illustrations
(a) A wishes to prove a dying declaration by B. A must prove B’s death.
(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.
Corresponding sections were matched by comparing the wording of both official texts, and for the IPC and BNS, also against a published correspondence table. Wording, punishments and structure often changed, so read both sections before relying on the match.
Source: India Code (Legislative Department), the text of the Act as it stood before its repeal. Words in square brackets [ ] were inserted or substituted by later amending Acts, and *** marks words omitted by an amendment. The amendment footnotes are not reproduced here.
Understanding this section
Section 104 says that where a fact must be proved before some other evidence becomes admissible, the burden of proving that preliminary fact is on the person who wants to give the evidence.
Examples
- To prove a dying declaration, a party must first prove the declarant's death.
- To prove the contents of a lost document by secondary evidence, a party must first prove that the document has been lost.
Purpose
Many rules of evidence depend on foundational facts. Section 104 makes the party relying on the rule responsible for laying that foundation.
Key Supreme Court rulings
Mahakali Sujatha v. The Branch Manager, Future Generali 2024 INSC 296
Explained that under section 104 the burden of proving any fact necessary to enable a person to give evidence of another fact lies on the person who wishes to give that evidence.
Common mistakes
- Offering secondary evidence without first proving the foundational fact.
Read with: Section 65 Evidence Act, Section 32 Evidence Act, Section 107 BSA
Prepared with AI assistance as a study aid. Every ruling listed was checked against the Supreme Court's own judgments on this site, and quoted words appear in those judgments; linked names open the full judgment. Read the judgments themselves before relying on them. Not legal advice.