Sections 103 and 104 of Indian Evidence Act 1872: Burden of Proof
Sections 103 and 104 of the Indian Evidence Act, 1872 deal with two specific aspects of the burden of proof: who must prove a particular fact, and who must establish a preliminary fact necessary before other evidence can be admitted.
Meaning of burden of proof
In evidence law, the burden of proof identifies the person who is required to establish a fact before the Court. Sections 101 and 102 contain the general rules on burden of proof, while Sections 103 and 104 address particular facts and facts that must first be proved to make other evidence admissible.
Section 103 - Burden of proof as to particular fact
Section 103 provides: The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless a law provides that proof of that fact shall lie on a particular person.
The section applies to a specific factual assertion. Ordinarily, the party asking the Court to accept that particular fact must prove it. The rule is subject to any statutory provision that places the burden on somebody else.
Illustration under Section 103
A prosecutes B for theft and wants the Court to believe that B admitted the theft to C. A must prove the admission.
B wants the Court to believe that, at the relevant time, he was elsewhere. B must prove that fact.
Section 104 - Burden of proving fact necessary to make evidence admissible
Section 104 provides: The burden of proving a fact that must be established before a person can give evidence of another fact lies on the person who wishes to give that evidence.
Section 104 therefore concerns a preliminary or foundational fact. When the admissibility of proposed evidence depends on first establishing another fact, the party seeking to rely on that evidence must establish the required foundation.
Illustrations under Section 104
Dying declaration: If A wishes to prove a dying declaration made by B, A must first prove B's death.
Secondary evidence: If A wishes to prove the contents of a lost document by secondary evidence, A must first prove that the document has been lost.
Difference between Sections 103 and 104
Section 103 determines who must prove a particular fact that a party wants the Court to believe. Section 104 applies where proof of one fact is a necessary condition for the admissibility of evidence concerning another fact. Both provisions form part of Chapter VII of the Indian Evidence Act dealing with the burden of proof.
Related provisions
For the general rule on burden of proof and the test for deciding on whom that burden lies, see Sections 101 and 102 of the Indian Evidence Act, 1872. The following provisions address additional special rules relating to burden of proof.