Introduction
A litigant wants to place a photocopy of a document before the court because the original has gone missing. Before the court will even look at what that photocopy says, one question has to be answered first: is the litigant allowed to rely on a copy at all? That gatekeeping question is exactly what Section 107 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs.
This article covers Section 107's text and its two illustrations, and a Supreme Court ruling on how strictly courts police the foundational proof required before secondary evidence — a copy standing in for a lost original — is ever let in.
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.
Section 107 reproduces Section 104 of the Indian Evidence Act, 1872 without any change, confirmed against two independent bare-act sources.
A Two-Step Gate, Not One
Section 107 describes a category of evidence that comes with its own built-in precondition: some facts can only be proved a certain way once a separate, foundational fact is first established. A dying declaration is only admissible evidence at all once death is proved; a copy of a document is only admissible in place of the original once the original's loss (or destruction, or inaccessibility) is proved. The burden of establishing that foundational fact sits on whoever wants to introduce the dependent evidence — not on the opposing side to disprove it.
H. Siddiqui (Dead) by LRs v. A. Ramalingam: Proving the Gate Before Walking Through It
In H. Siddiqui (Dead) by LRs v. A. Ramalingam, (2011) 4 SCC 240, the Supreme Court addressed exactly illustration (b)'s scenario: a party sought to rely on secondary evidence of a document's contents. The Court held that secondary evidence relating to a document's contents is inadmissible until the non-production of the original is properly accounted for — brought within one of the recognised grounds such as loss or destruction — and, further, that the secondary evidence itself must be authenticated by foundational proof that the alleged copy is in fact a true copy of the original. A court has an independent obligation to decide this admissibility question before ever engaging with what the document actually says.
Illustration (a) Applied
A dying declaration is powerful precisely because ordinary rules would otherwise exclude an out-of-court statement never tested by cross-examination — but that special treatment only exists because the person is dead and cannot be called as a witness at all. Before a court hears what B allegedly said on their deathbed, A must first independently prove B actually died — a post-mortem report, a death certificate, or credible testimony to that effect. Without that foundational proof, the declaration itself never becomes admissible evidence in the first place, however reliable its contents might otherwise appear.
Why the Burden Sits With the Party Who Wants to Use the Evidence
Section 107 places this foundational burden on the party who benefits from the evidence being admitted, rather than requiring the opposing side to prove the foundational fact is missing. This follows the same logic running through much of this chapter: whoever wants a court to accept something out of the ordinary — a copy instead of an original, a dead person's unsworn statement instead of live testimony — must be the one to establish why that departure from the ordinary rule is justified here.
Key Takeaways
- Section 107 BSA carries forward Section 104 IEA verbatim, both illustrations intact and unchanged.
- Certain evidence — dying declarations, secondary evidence of documents — is only admissible once a separate foundational fact is independently proved.
- H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240, confirms secondary evidence requires proof both that the original is genuinely unavailable and that the copy offered is a true copy — courts must decide this before considering the document's contents.
- The burden of establishing the foundational fact sits on whoever wants the dependent evidence admitted, not on the party opposing it.
- The same logic applies whether the stakes are a property dispute over a lost document or the admissibility of a dying declaration in a criminal trial.
Conclusion
Section 107 is a gatekeeping rule dressed up as a small technical point: it decides who has to do the work of justifying a departure from ordinary proof, before a court ever gets to weigh the substance of what's actually being offered. H. Siddiqui shows courts take that gatekeeping seriously — a bare assertion that an original is lost is not enough. Chapter VII's descent through the burden-of-proof provisions continues next at Section 106.