DAMODARAM SANJIVAYYA

NATIONAL LAW UNIVERSITY

Law of Evidence
Proof and Standard of Proof
A Comment on its Applicablity
PERMANIKA CHUCKAL
2012075 4th SEMESTER
SECTION-B

1 | Page

2 | Page

TABLE OF CASES

1. Priston Jones v.Priston Jones 1951 AC 391; (1951) 1 All ER 12

2. State of MP v. Dhirendra Singh AIR 1997 SC 318.
3. District Bar Association, Kuruksetra v. State of Haryana AIR 1997 P&H 231.
4. Annavi Mutherayyar v. Emperor AIR 1916 Mad 851
5. J.D Jain v. Management, State Bank of India AIR 1982 SC 673.
6. Jagrup v. Rex AIR 1952 All 276.
7. Munir Ahmed v. State of Rajasthan AIR 1989 SC 705
8. Jai Gopal v. Sheo Sagar 8 I.C.579.
9. Harendranath Burman v. Suporva Burman and ors AIR 1989 Cal 120.
10. Balgovind Das v. Muqbool AIR 1936 Cal 164.
11. Ram Chandra Shukla Mahajan v. Damodar Trimbuk Tanksale AIR 2007 SC 2577.
12. Sheik Ebadath Ali v. Md. Farea 35 I.C 56.
13. Arjun Chand v. Kailash Chandra AIR 1923 Cal 149.

LIST OF ABREVIATIONS

1) AIR...All India Reporter

3 | Page

2) AIHCAll India High Court Case

3) SCC.Supreme Court Cases
4) SC..Supreme Court
5) CRI. LJCriminal Law Journal
6) CWN.Calcutta Weekly Notes
7) No..Number
8) v..Versus
9) Para....Paragraph
10) Co...Company
11) Ltd.Limited
12) p.Page
13) Hyd...Hyderabad
14) PEPSU...Patiala & East Punjab States Union
15) MP...Madhya Pradesh
16) Cal.Calcutta
17) Pat..Patna
18) Raj..Rajasthan
19) All..Allahabad
20) Bom..Bombay
21) Kar.Karnataka
22) Ker...Kerala

CONTENTS
1. What is Proof?
2. What is Standard of proof?
3. The English Law View
4. Indian Context
5. Conclusion
6. Bibliography

4 | Page

5
7
8
10
15
17

What is Proof?
Evidence that establishes existence or truth (or non-existence or untruth) of a fact to
the satisfaction of an authority (such as a court) in accordance with the accepted standards.
Proof (truth) is, an argument or sufficient evidence for the truth of a proposition
The establishment of a fact by the use of evidence is referred to as proof according to
the Farlex legal dictionary. Anything that can make a person believe that a fact or
proposition is true or false. It is distinguishable from evidence in that proof is a broad term
comprehending everything that may be adduced at a trial, whereas evidence is a narrow term
describing certain types of proof that can be admitted at trial.
The phrase burden of proof includes two distinct concepts, the Burden of Persuasion
and the Burden of Going Forward. The burden of persuasion is the duty of a party to
convince the trial of fact of all the elements of a Cause of Action. The burden of going
forward refers to the need of a party to refute evidence introduced at trial that damages or
discredits his or her position in the action. The burden of persuasion remains with the plaintiff
or prosecutor throughout the action, whereas the burden of going forward can shift between
the parties during the trial.
In a civil action, the requisite degree of proof is a preponderance of the evidence. The
plaintiff must show that more probably than not the defendant violated his or her rights. In a

5 | Page

criminal action, the prosecutor has the burden of establishing guilt Beyond a Reasonable
Doubt.1
The conviction or persuasion of the mind of a judge or jury, by the exhibition of
evidence, of the reality of a fact alleged: as, to prove, is to determine or persuade that a thing
does or does not exist. Proof is the perfection of evidence, for without evidence there is no
proof, although, there may be evidence which does not amount to proof: for example, a man
is found murdered at a spot where another had been seen walking but a short time before, this
fact would be evidence to show that the latter was the murderer, but, standing alone, would be
very far from proof of it.
Ayliffe defines judicial proof to be a clear and evident declaration or demonstration, of a
matter which was before doubtful, conveyed in a judicial manner by fit and proper
arguments, and likewise by all other legal methods; first, by proper arguments, such as
conjectures, presumptions, indicia, ways and means; and, secondly, by legal method, or
methods according to law, such as witnesses, public instruments, and the like.

What is Standard of proof?

The standard proof in criminal cases refers to the amount of evidence which a plaintiff
or a prosecuting attorney, in a criminal case must present in a trial in order to win. Criminal
trials employ a higher standard of proof, because criminal defendants face the deprivation of
liberty or life if convicted while civil defendants generally face an order to pay damages if the
plaintiff prevails. However, different cases require different standards of proof accordingly.
The degree of proof required to establish a case. Criminal cases require that a
defendant's guilt be proved "beyond a reasonable doubt." Civil lawsuits, on the other hand,
usually require proof "by a preponderance of the evidence" - meaning that the scales only
need tip more in one direction than the other.2
Can be referred to as, The test to establish whether a party has succeeded in proving
a fact in issue

1 http://legal-dictionary.thefreedictionary.com/proof | Last visited: 24-3-2014.

2 www.law-dictionary.clearpointlaw.com| last visited: 24-3-2014.
6 | Page

In civil matters, the standard of proof is generally "on the balance of probabilities" or
"a preponderance of the evidence", meaning that if it is more likely than not that the fact
alleged is true, then the standard has been met.3
In criminal matters, the standard of the burden of proof borne by the prosecution is to
prove that the Defendant is guilty so that the jury are "sure". The old formulation of "beyond
all reasonable doubt" in jury instructions has been abandoned. Juries are now told simply that
the prosecution must convince them of the Defendant's guilt, so that they are sure. If a
Defendant bears a burden of proof it will usually be to a lesser "evidentiary" standard of
proof - sufficient to raise the facts as an issue.
The standard proof in criminal cases refers to the amount of evidence which a plaintiff
or a prosecuting attorney, in a criminal case must present in a trial in order to win. Criminal
trials employ a higher standard of proof, because criminal defendants face the deprivation of
liberty or life if convicted while civil defendants generally face an order to pay damages if the
plaintiff prevails. However, different cases require different standards of proof accordingly.

The English Law View

Presumptions are legal fictions, either rebuttable/ permissive or ir-rebuttable that
weighs a case in favour of either the claimant or the defendant and determines the burden of
proof, which normally, of course, lies with the plaintiff the ancient and now universal
principle of actori incombit probatio.
Probably the most famous presumption is the presumption of innocence though,
despite universal reverence for it, the maxim cannot be found in Magna Carta, the English
Bill of Rights of 1689, in the works of the great English jurists, Bracton, Coke, or Blackstone
or any English case law prior to c.1800 . Nevertheless, the origins of presumptions penetrate
so deeply into ancient history that it would be absurd to try and fix a date at which they first
began to be used in English law. The Anglo Saxon king of Wessex, Ine, (688726) held that
foreigners who sounded horns in a wood near a road should be presumed thieves and killed,
while according to the law of Cnut (10171035) if a wife hid her husband after he had
reported an object stolen she would be presumed to be a thief and punished alongside him.4
3 Dr. V. Krishnamachari, Law of Evidence, S. Gogia & Company, 7th Edition, 2014.

4 Peter Murphy,Murphy on Evidence,11thEdition 2009,Oxford University Press

7 | Page

Thus a presumption stipulates that if the commission of an act can be demonstrated

then another may or must be inferred from it. When a presumption is ir-rebuttable for
example, that a minor under a certain age may be doli incapacita, i.e. unable to have
committed certain crimes no factual inquiry challenging the truth of the presumed fact may
be entertained by the court. In 1584, for example a statute was passed stating that a sale
immediately proceeded by a second sale is presumed irrefutably to be fraudulent. Conversely,
when a presumption is rebuttable, some factual debate as to the truth of the assumed fact is
allowed. If a mother hid the death of her newborn there would be a rebuttable presumption of
infanticide. Similarly in the case of the presumption of legitimacy that a child born during a
marriage is the legal issue of both spouses the factual inquiry is limited to a few exceptions
that are difficult to prove. The presumption can be rebutted only by proof of the husband's
impotence, sterility, or non-access to the wife this example raises interesting questions. In the
absence of scientific proof to the contrary, courts dating back to the Middle Ages have
employed presumptions to limit or bar the introduction of evidence to ascribe paternity.
Current developments in genetic testing, however, can prove or disprove paternity
and, thereby, call into question the validity of such presumptions. At present is is possible to
establish by genetic testing to a 99.85% certainty that a particular man is not the father of a
particular child, or to a 99.99999% certainty that a particular man is the father of a particular
child. Consequently, courts must decide whether to preserve presumptions of paternity and
legitimacy that protect children from bustard or to yield to scientific advances. How should
the law respond when advances in scientific knowledge reveal what was presumed to be true
as scenically false? A judge once remarked that presumptions are common sense and
shrewdness brought to bear upon the facts elicited. Another noted that the weight of
evidence depends on rules of common sense. These are, both very pertinent and compelling
statements but then again bastardy no longer carries the social stigma it took delivery of
under Victorian society. The social benefits served by the presumption of legitimacy were
once manifold. It ensured that children were eligible to the financial support, inheritance
rights, and filial obligations of their parents, preventing them from becoming wards of the
state so that neither king, nor church, or taxpayer was forced to provide for them. Such
arguments no longer hold weight. S.1 of the Family Law Reform Act 1987 established the
general principle that there should be legal equality for children, whether or not their parents
have been married to each other. Nevertheless the argument that the presumption of

8 | Page

legitimacy maintains the stability of the family may still remain valid. The question remains,
independent of the issue of equal treatment: is fatherhood a biological question or a sociolegal construct? This is just one way in which the incongruity between law and science has
questioned the validity of presumptions. Yet the two might continue to co-exist: writing in the
18th C., the Scottish philosopher and historian David Hume nonetheless submitted an idea
that remains convincing today. In vain, he cautions, should we pretend to determine any
single event, or infer any cause or effect, without the assistance of observation and
experience.5

Indian Context
Evidence may be given of a fact in issue or of a fact in issue or of a relevant fact or no
others. Part II of The Indian Evidence Act deals with proof of fact i.e., the manner in which
they must be true as defined in section 3 of the act. The fundamental object of the evidence is
to prove the points in issue and to create some sort of certainty in the minds of the court as to
the existence or no existence of the facts. Whenever a point is raised, the party asserting it
must prove the facts relevant to the point by rendering evidence.
The general rule is that every fact on which a party relies must be proved either by oral or
documentary evidence. However this rule is subject to three exceptions:1. Facts of which the court takes judicial notice, referred in S. 57 of the IEA, 1872,
2. Facts admitted S58 of IEA, 1872,
3. Facts which the law presumes in favour of a party and need not be proved.
Section 56 provides that the facts of which the court is capable of jtaking judicial notice
need not be proved. Stephen in his introduction observes:That certain facts are so notorious in themselves or are stated in such an authentic
manner in well known and accessible publications that they require no proof. The court, if it
5 http://blogs.warwick.ac.uk/amnieora/entry/evidence proof | last visited: 23-3-2014
9 | Page

does not, know then, can inform itself upon them without formally taking evidence. These
facts are said to be judicially noticed.6
What is proved?
According to S. 3 of the IEA, 1872
A fact is said to be proved when after considering the matter before it, the court
believes it to exist or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists.
Priston Jones v Priston Jones 7
The House of Lords observed that the court could take judicial notice of the fact that the
duration of the normal period of gestation is about 9 months.
Section 57 provides The court shall take notice of the facts which come under the
laws enforced in the territory of India, all public acts passed or which will be passed by the
parliament of UK, Articles of war of the Indian army, navy, or air force, or in the states, of
Indian legislatures, public offices whose notification is present in any official gazette, every
state recognized by the Indian Government, the divisions of world, fasts, festivals notified in
official gazette, the territories under Indian dominance, of advocates vakils officers who are
admitted by court to act before it
State of MP v Dhirendra Singh8
It was held by the supreme court that judicial notice can be taken of a fact that many a
times prescribed registers are not available and so they are kept in non prescribed way. Many
a time even a case diary is not kept in the prescribed way.
District Bar Association, Kuruksetra v state of Haryana. 9

6 West Indian Law Journal - Volumes 30-31 - Page 230

7 1951 AC 391; (1951) 1 All ER 12
8 AIR 1997 SC 318.
9 AIR 1997 P&H 231.
10 | P a g e

The Punjab and Haryana high court held that in case of creation of new district the
court may take judicial notice of the fact that the judicial complex was not constructed and
the inconvenience was being caused to public.
Section 58 of IEA provides that facts which have been admitted need not be proved. Unless
the context otherwise requires. In civil cases there is no doubt that the party or his pleader
may at any time relieve his adversary from the necessity of proof. It has been said that the
section applies to civil suits only.
Annavi Mutherayyar v Emperor10
In this case the rules of evidence are subject to the general principles of jurisprudence
that it is the duty of the prosecution to prove the case against the accused and that they should
not rely upon admissions made by him in the course of the trial for convicting him.
Section 59 of IEA provides Proof of Facts by Oral Evidence. Oral Evidence-is the
evidence which is confined to words spoken by mouth. Oral evidence, if worthy of credit, is
sufficient without documentary evidence to prove a factor title. Where a fact may be proved
by oral evidence it is not necessary that the statement of the witness should be oral.
J.D Jain v. Management, State Bank of India11
The fact that the statement was made, apart from its truth is frequently relevant in
considering the mental state and conduct thereafter of the witness or some other person in
whose presence the statement was made.
Jagrup v. Rex12
Wherein prosecution under section 42 read with section 123 Motor Vehicle Act for
not issuing tickets to the passengers, the head constable deposed when they demanded tickets,
they were informed by the passengers that none had been issued to them, the evidence was
held to be hearsay.

10 AIR 1916 Mad 851

11 AIR 1982 SC 673.
12 AIR 1952 All 276.
11 | P a g e

Munir Ahmed v. State of Rajasthan13

In the case of living person his evidence in the judicial proceeding must be recorded
by calling the person to the witness box. It cannot be substituted by affidavit except when
special provisions permit it.
Section 61 of IEA provides proof of contents of documents.
Documentary Evidence: The word document has been defined in sec 3 of the IEA.
Document means any matter expressed or described upon any substance by means of letters,
figures or marks or by more than one of those means intended to be used or which may be
used for the purpose of recording that matter. The most common document with which we
have to deal is a document which is described by letters.
Section 62 of IEA provides primary evidence.
Primary Evidence: Primary evidence means the original document itself produced
for the inspection of the Court.
Jai Gopal v. Sheo Sagar14
Where a judgment originally written in English was translated into Urdu and the
judge signed the translation, it was held that it was primary evidence of its contents.
Harendranath Burman v. Suporva Burman and ors.15
It was held by Calcutta High Court that the entries in register of a church about date
of birth should be admitted as primary evidence and not secondary evidence.
Section 65 A of IEA provides special provisions as to evidence relating to electronic
record according to the provisions of the S 65-B

13 AIR 1989 SC 705

14 8 I.C.579.
15 AIR 1989 Cal 120.
12 | P a g e

Section 65 B of IEA provides admissibility of electronic records, wherein electronic

records mean which are printed on paper, stored, recorded, or copied or magnetic media
produced by a computer.
Balgovind Das v. Muqbool16
It was held that the admission in evidence of a document with per se inadmissible in
evidence can be objected to at any stage even in appeal. It is not necessary that the objection
should be made at the time of production of evidence.
Ram Chandra Shukla Mahajan v. Damodar Trimbuk Tanksale17
In a suit for title, the plaintiff relied upon an incident lease document of 1875 in
support of his claim. The Court refused to look into the document of title on the ground that
no foundation has been laid by adducing secondary evidence by production of a certified
copy of the lease deed. Held- it was a course adopted by the Court resulting in injustice as the
Court ought to have granted an opportunity to the plaintiff to prove that document or to lay
the foundation for secondary evidence for its acceptance in evidence by production of
certified copy of the lease deed.
Section 67 A of IEA provides proof as to electronic signature, which shall be proved
that such signature is the signature of the subscriber must be proved.
Section 68 of IEA provides proof of execution of document required by law to be attested.

Sheik Ebadath Ali v. Md. Farea18

Exectuiton consists in signing a document written out, read over and understood. It
does not consist of merely signing a name upon the blank paper. To be executed, a document
must be in existence; where there is no document in evidence, there cannot be execution.
16 AIR 1936 Cal 164.
17 AIR 2007 SC 2577.
18 35 I.C 56.
13 | P a g e

Arjun Chand v. Kailash Chandra19

Execution means completed. The execution of a deed means signing, sealing and delivering.
To execute means to go through the formalities necessary for the validity of a legal act.

Conclusion
Admissible evidence, in a court of law, is any testimonial, documentary, or tangible
evidence that may be introduced to a judge or jury to establish or to bolster a point put forth
by a party to the proceeding. For evidence to be admissible, it must be relevant, without being

19 AIR 1923 Cal 149.

14 | P a g e

unfairly prejudicial, and it must have some indicia of reliability. The general rule in evidence
is that all relevant evidence is admissible and all irrelevant evidence is inadmissible.
Relevance
For evidence to be admissible, it must tend to prove or disprove some fact at issue in
the proceeding. However, if the utility of this evidence is outweighed by its tendency to cause
the fact finder to disapprove of the party it is introduced against for some unrelated reason, it
is not admissible. Furthermore, certain public-policy considerations bar the admission of
otherwise relevant evidence.20
Reliability
For evidence to be admissible enough to be admitted, the party proffering the
evidence must be able to show that the source of the evidence makes it so. If evidence is in
the form of witness testimony, the party that introduces the evidence must lay the
groundwork for the witness's credibility and knowledge of the attests to. Hearsay is generally
barred for its lack of reliability. If the evidence is documentary, the party proffering the
evidence must be able to show that it is authentic, and must be able to demonstrate the chain
of custody from the original author to the present holder. The trial judge performs a "gate
keeping" role in excluding unreliable testimony.
That evidence the court determines to be admissible for the trial depends on the
applicable rules of evidence for the court. Types of evidence include witness testimony,
opinion and expert testimony, documentary or tangible evidence.

In weighing the evidence brought before the court, the court will carefully consider a
range of aspects including relevance, authentication and identification of the evidence,
credibility of the witness, reliability of the expert, the value of hearsay and the chain of
custody in case of documentary evidence. In order to reach the level of high standard of
proof which is mostly required in judicial proceedings, the information gathered must be
accurate, reliable and of good quality. Considerations to take into account are:

the source of information;

20 www.lexology.com last visited:23-3-2014

15 | P a g e

the level of detail of the account;

the consistency of the allegation;

corroborating elements supporting an allegation or corroborating evidence;

recent information.
The standard of proof varies depending on whether it is a criminal or civil case. In a

criminal case the defendant has to be proven guilty beyond a reasonable doubt. In a civil case
the applicable rule is the preponderance of evidence. 21

Bibliography
Books reffered :21 Batuk Lal, The Law of Evidence, Central Law Agency, 19th Edition.
16 | P a g e

1) Krishnamachari, V. Dr., Law of Evidence, S. Gogia & Company, 7th Edition, 2014.
2) Ratanlal & Dhirajlal, The Law of Evidence, Wadhwa Nagpur, 22nd Edition, 2007.
3) Lal, Batuk, The Law of Evidence, Central Law Agency, 19th Edition.
4) Sarkar, M.C. & Sarkar S.C., Sarkars Law of Evidence, Lexis Nexis Butterworths
Wadhwa Nagpur, 17th Edition, 2010.
5) Sarkar, S.C., Commentary on Law of Evidence, Volume 2, Dwivedi Law Agency, 3rd
Edition, 2010.
6) Tyagi, S.P., Law of Evidence, Vinod Publications Pvt. Ltd., 2nd Edition, 2008.
7) Rao, Kesava V. Dr., Sir John Woodroffe & Syed Amir Alis Law of Evidence, Lexis
Nexis Butterworths Wadhwa Nagpur, 18th Edition, 2009.
8) Sarin, Manmohan Lal Law of Evidence, Volume 2, Universal Law Publishing Co. Pvt.
Ltd, New Delhi, 15th Edition, 2010.

Sites reffered :1) www.legalcrystal.com last visited 23rd March time: 9:30 pm
2) www.lexology.com

last visited 20th March time :11:43 pm

3)www.indiankanoon.com last visited 22rd March time:6:13 pm

4) www.google.com last visited 23rd March time 4:20 pm
5) www.manupatra.com last visited 24th March time 10 am

17 | P a g e