Section 104 IEA: Burden of proving fact to be proved to make evidence admissible
Indian Evidence Act, 1872
Section 104 IEA at a Glance
Section 104 IEA deals with burden of proving fact to be proved to make evidence admissible. From 1 July 2024 it is replaced by Section 107 BSA.
Section 104 IEA Bare Act Text
104. 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 104, Indian Evidence Act, 1872
Section 104 IEA in Simple Words
Section 104 of the Indian Evidence Act, 1872 applies 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 Act show how Section 104 IEA 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 104 IEA 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 104 IEA
Section 104 IEA in the BSA
Section 104 IEA is now covered under Section 107 BSA.
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.
View detailed comparison (IEA 104 vs BSA 107) →FAQs on Section 104 IEA
What is Section 104 IEA?▼
Section 104 of the Indian Evidence Act, 1872 places the burden of proving a preliminary fact on the person who wants to give evidence of another fact that depends on it. Until that necessary preliminary fact is proved, the person cannot give that other evidence.
What must a party prove before proving a dying declaration under Section 104 IEA?▼
The death of the person who made the statement. Under the illustration to Section 104 IEA, a party who wants to rely on a dying declaration must prove the death of the maker of that declaration.
Can a party give secondary evidence of a lost document without proving the loss?▼
No. Under the illustration to Section 104 IEA, a party who wants to use secondary evidence for a lost document must first prove that the document was lost.
What is Section 104 IEA in BSA?▼
Section 107 BSA. Section 104 IEA became Section 107 BSA on 1 July 2024 without any change in wording.
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Sources: Bare Act Text, Indian Evidence Act, 1872 ·