Section 104 of the Indian Evidence Act, 1872

Illustrations:

(a) A wishes to prove a dying declaration by B. A must prove B’s death.

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(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.

Comments:

According to this section the admissibility of one fact depends upon the proof of another fact. It is a condition precedent to prove the particular fact. Illustration (a) states that where a person wishes to prove a dying declaration, he has to prove that the declarant has died.

The question as to whether burden of proof has been discharged by a party to the lis or not depend upon the fact and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom burden of proof by would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitus passengers.