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Bharatiya Sakshya Adhiniyam, 2023 — Section 107: Burden of proving fact to be proved to make evidence admissible

§ SECTION 107 · BSA 2023 · CHAPTER VII — BURDEN OF PROOF

Burden of proving fact to be proved to make evidence admissible

Before some evidence can be given, a foundational fact must first be proved. The burden of that enabling fact is on whoever wishes to give the main evidence.

How to read Section 107

Some evidence needs a foundational fact first → that fact must be proved → by the one who wants to give the main evidence.

The gate

Some evidence is admissible only if a foundational fact is first proved.

The key fact

That enabling fact must be established first.

Who proves it

The party who wishes to give the main evidence must prove it.

The bare Act

The section in its own words — the rule and two illustrations.

Section 107 · verbatim

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.

In short: some pieces of evidence are not admissible on their own — the law lets them in only if a preliminary fact is first established. A statement by a person as to the cause of his death (a dying declaration) can be used only once that person is shown to be dead; a copy or account of a document (secondary evidence) can be used only once the original is shown to be lost or otherwise unavailable. This section fixes whose job that preliminary proof is: the person who wants to give the main evidence must first prove the fact that unlocks it.

→ This carries forward IEA 1872 § 104 — the burden of the fact that makes other evidence admissible.

Glossary

fact necessary to be proved

A foundational fact that unlocks other evidence.

to enable…evidence of any other fact

A precondition for the main evidence to come in.

person who wishes to give such evidence

Whoever wants to lead the main evidence.

dying declaration

A statement by a person now dead as to the cause of his death.

secondary evidence

A copy or account standing in for an original document.

lost document

An original that cannot be produced because it is lost.

The picture

Prove the key fact first — it unlocks the main evidence for the one who wants to give it.

prove the KEY factdeath / lossthe enabling factit UNLOCKS themain evidenceburden on the onewho wants to givethat evidence(a) prove B is dead→ then prove the dying declaration(b) prove the document is lost→ then give secondary evidence

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

the ruleThe gate-fact is proved by whoever wants through the gate

In one lineWhere one fact must be proved before other evidence can be given, the burden of that enabling fact is on the person who wishes to give that other evidence.
1the evidence needsa foundationalfact first2that enabling factmust be provedfirst3by the one whowants to give themain evidencewhoever wants through the gate must prove the fact that opens it
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other facta fact that must come first to admit other evidence…a preliminary fact, without which the main evidence is not admissible…
is on the person who wishes to give such evidence.→ falls on the one who wants to give that evidence…must be proved by the party who wants to lead the main evidence.
ExampleTo read out a witness’s earlier statement because he cannot be found, you must first prove that he cannot be found — that gate-fact is yours.
✗ Not thisThis is not about the burden of the main fact. It is the preliminary fact that makes the evidence admissible at all — a condition of entry, not the merits.

the two illustrationsDying declaration → prove death · secondary evidence → prove loss

In one line(a) To use B’s dying declaration, A must first prove B is dead; (b) to use secondary evidence of a document, A must first prove it is lost.
(a) dying declarationkey fact: B is dead→ A must prove B’s death(b) secondary evidencekey fact: the document is lost→ A must prove the lossthe giver proves the gate-fact before the main evidence comes in
(a) A wishes to prove a dying declaration by B. A must prove B’s death.(a) death unlocks the dying declarationthe declaration is admissible only if B is dead — so 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.(b) loss unlocks the secondary evidencesecondary evidence is admissible only if the original is lost — so A must prove the loss.
ExampleA cannot put B’s dying words before the court until A proves B is dead — the death is the key that unlocks the declaration; only then may its contents be led.
✗ Not thisProving death or loss does not prove the contents. It only opens the door — the main evidence must still be led and weighed.

Connected provisions

§ 26

Dying declaration

Statements by a person now dead — admissible once death is shown (illustration a).

§ 58

Secondary evidence

Copies and accounts standing in for an original — once loss is shown (illustration b).

§ 108 · next

Accused within exceptions

When an accused claims a general or special exception, the burden of proving it is on him.

lineage

IEA 1872, § 104

Carried forward — the burden of the fact that admits other evidence.