Section 107 BSA: Burden of proving fact to be proved to make evidence admissible

Bharatiya Sakshya Adhiniyam, 2023

Section 107 BSA at a Glance

Section 107 BSA deals with burden of proving fact to be proved to make evidence admissible. It replaced Section 104 IEA on 1 July 2024.

Was IEA

Section 104 →

Section 107 BSA Bare Act Text

107. Burden of proving fact to be proved to make evidence admissible

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.

Source: Section 107, Bharatiya Sakshya Adhiniyam, 2023

Section 107 BSA in Simple Words

Section 107 of the Bharatiya Sakshya Adhiniyam, 2023 applies from 1 July 2024 when a preliminary fact must be proved before other evidence becomes admissible (allowed to be received by the court). A person may want to give evidence of a particular fact in court. Sometimes another fact has to be proved first in order to allow that evidence. The person who wants to give the evidence has the burden of proving (the duty to prove in court) that preliminary fact.

Sometimes a piece of evidence is allowed only if a prior fact is true. The party offering that evidence must first prove the prior fact.

The illustrations to the Adhiniyam show how Section 107 BSA works. A party may want to rely on a dying declaration (a statement made by a person before dying). That party must prove the death of the person who made the statement. A party may also want to use secondary evidence (evidence of what a document says other than the original) for a missing document. That party must prove that the original document was lost.

When Section 107 BSA Applies

  • A person wants to give evidence of a fact in court.
  • Another fact must be proved first to enable that person to give the evidence.
  • The person who wants to give the evidence must prove that preliminary fact.

Example of Section 107 BSA

In September 2024, during a trial in a Kochi court, Anita wants to give evidence of an electronic message received from Priya. To enable a party to give evidence of that message, it is necessary to prove first that the message was sent from an account controlled by Priya. Under Section 107 BSA, the person who wants to give evidence of a fact must prove any preliminary fact required to allow that evidence. Anita must therefore prove that the account belonged to Priya in order to give evidence of the electronic message.

Section 107 BSA in the IEA (Previous Law)

Section 107 BSA replaces Section 104 IEA from the old criminal code.

Section 104 of the Indian Evidence Act, 1872 became Section 107 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024 without any change in wording.

FAQs on Section 107 BSA

What is Section 107 BSA?▼

Section 107 of the Bharatiya Sakshya Adhiniyam, 2023 places the burden of proving a preliminary fact on the person who wants to give evidence of another fact that depends on it. That person must prove the preliminary fact before giving the other evidence.

Does a party have to prove death before proving a dying declaration under Section 107 BSA?▼

Yes. Under the illustration to Section 107 BSA, a party who wants to rely on a dying declaration must prove the death of the person who made that declaration.

Must a party prove that a document was lost before giving secondary evidence of it?▼

Yes. Under the illustration to Section 107 BSA, a party who wants to use secondary evidence for a lost document must prove that the document was lost.

What is Section 107 BSA in IEA?▼

Section 104 IEA. Section 104 IEA became Section 107 BSA on 1 July 2024 without any change in wording.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·