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

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

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Fact Sec 2(1)(d)

Legal Commentary & Landmark Judgments: Section 107

Section 107 provides that 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, governing foundational or predicate facts.

Predicate Fact Proof: A party cannot lead derivative or conditional evidence without first proving the preliminary fact that makes it admissible.
Secondary Evidence Predicate: Before leading secondary evidence of a lost document, the party must prove that the original was lost or destroyed under Section 60.
Dying Declaration Predicate: Before proving a dying declaration, the party must prove that the declarant is dead.

Key Landmark Precedents:

J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730: The Supreme Court held that under Section 104 IEA (Section 107 BSA), the foundational facts demonstrating the loss or destruction of the original document must be strictly established before secondary evidence can be admitted.
Rakesh Mohindra v. Anita Beri (2016) 16 SCC 483: Affirmed that secondary evidence cannot be admitted merely because an application is filed; the predicate of non-availability must be established by credible evidence.

Courtroom Practice & Strategic Litigation Guidance:

Before attempting to introduce an audio recording or CCTV footage, lay the foundation under Section 107 by proving the chain of custody, device ownership, and the statutory Section 63 certificate.