Author: Kshitij Kothari, 1st Year, B.A LL.B (Hons), School of Law, Jagran Lakecity University, Bhopal.

The Author has written the article while pursuing the internship programme with us.


The Law of Evidence is an essential figure of the legislature which postscripts Court’s proceedings. Evidence is the subject matter that formulates an accretion or a claim that supplements the Court of law to come to a specific judgment. Verbal or documentary evidence should be placed before the Court to prove or disapprove the respective contentions of both parties[1]. The rule of evidence is an essential part of the respective parties to produce the best evidence in hand to formulate their claim beyond a reasonable doubt. The Law of evidence is claimed to be the law of the forum or the Lex Fori[2].

In India the establishment of the Law of Evidence Act has transformed our judicial system as earlier of its enactment there were no codified laws concerning evidence for our judicial system. But by its enactment in 1872, the law ascertained the threads of evidence by providing rules and regulations. The term ‘evidence’ is derived from the Latin word ‘Evidere’ or ‘Evident’, means ‘to show clearly, or to ascertain or to prove.’


Standard of proof establishes the degree of evidence necessary to prove an assertion or claim in a trial. In the criminal justice system, it is the government, which herein means the prosecutor that has the burden of proof, not the defendant, to prove the elements of the criminal charges in a specific case whereas in civil cases, the burden of proof lies with the plaintiff that has the obligation of the burden of proof (although the burden may shift based on which party is making a claim). Standards of proof formulate the burden of proof based on the assertions asserted. Some provisions of proof relate to activities that take place before a suspect is charged with a crime. These pre-emptive standards are very vital to restrict the violation of a suspect’s constitutional rights which can ignore or suppressed because the evidence obtained in.

It can be analyzed by the words “matters before it”[3], i.e. the judicial system will include oral and documentary evidence, conditions, or other material revealed from the local survey. About the criminal and civil cases, the provision here is about the ‘standard of proof’. In criminal cases, it should be proved beyond a reasonable doubt. The same principle is not applicable to civil cases. In civil cases, the proof is on the degree of probabilities.


In a common law system, two separate standards of proof are recognized, namely; proof beyond reasonable doubt and proof based on the balance of probabilities[4]. The former is the standard adopted while dealing with criminal cases whereas the latter is the standard used in cases of civil suits[5]. Different standards of proof are constructed among other objects which minimize the expensive social costs which may ultimately increase an account of errors. In a practical system, these two terms silently used in jurisdictions where juries participate, as the two terms seem to be rather abstruse and not immediately accessible.

Reasonable doubt is the state of mind of the Judges wherein they are not in a position to confirm the accuracy of the guilt of the accused even after all the cite evidence. We know that the law presumes the accused is innocent until he is proven guilty, it is necessary that before he is convicted, such a reasonable doubt does not exist. In the circumstances where uncertainty is created in the mind of the Judge, the accused is granted the benefit of the antecedents’ presumption[6]. However, beyond a reasonable doubt, does not convey those who have evaluated the evidence nearby should be certain of the guilt as this would generate eccentric and in appropriate circumstances by completely parting circumstantial evidence.

Thus, the standard of proof in inquiry proceedings should be proof of the prevalence of probabilities. Entrusting these standards would ensure that judges of doubtful suitability do not continue in office. It will ensure that only such judges should hold office whose suitability is beyond question and indisputable. The society does not deserve judges whose unsuitability has not been proved beyond a reasonable doubt. It deserves judges whose suitability has been proved beyond reasonable doubt[7].


The standard provisions in criminal trials are proof beyond a reasonable doubt. The clause is viewed as requiring a high degree of satisfaction that a prosecution must, by the means of evidence and materials it presents and creates in the mind of the juries. This high degree often proceeds to absolution occasionally even when the jurisdiction is trying to investigate the guilt of the accused, based on the evidence which eventually is more anticipated than his innocence. Nevertheless, if the minute doubt of guilt for the accused is created in the mind of the Court, he is given the benefit of the doubt and his innocence proclaimed. The reason behind backing the standard of proof beyond a reasonable doubt, no less than in criminal proceedings is very straight; although it is essential to punish a person guilty of criminal wrong, it is more important to certify that the disciplinary force of the state is not released on a man who could be innocent[8] and thus, to ensure beyond a reasonable doubt that the man facing criminal sanction is guilty of the crime for which he is being punished.

Also, in most cases, the accused might not have his ejection by the kind of facilities that the prosecution can use to establish with regards to the visuals of the events. This could another cause behind the generosity granted to the accused concerning the standard of proof to be sustained by the prosecution. This very clause is essential in criminal proceedings due to the nature of consequences that are likely to follow in case a person is convicted; loss of liberty and at times, life. On the other hand, the consequences of a wrong decision in a civil proceeding, though damaging in one way or the other, do not match the severity of a criminal sanction.


The standard of proof required for civil cases is the balance of probabilities, in comparison to the criminal cases where reasonable doubt is the standard of proof. The standard in civil suits continues to be the stability of probabilities even in primarily civil cases but where a criminal charge can be figured out against the opposite party. Basically, in civil suits, the Judge has to decide in favour of that party who is supported by the prevalence of proof. This eventually does not conclude that the evidence considered will be wholly exempt from doubt.

The standard clause which governs civil proceedings is the fact that it can be established if it is proved by a prevalence of probabilities[9]. This is encapsulated under the Indian Evidence Act 1872, section 3, where a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the actual case, to influence the supposition that it exists.

As a prudent man, the court applies this test for finding whether a fact in the case can be concluded to be proved. The first step is to make sure the probabilities; the second is to weigh them though the two may often contradict. The impossible is removed at the first stage and the improbable at the second. The reliance regarding the existence of a fact thus is instituted on a balance of probabilities. A prudent man facing conflicting probabilities apprehends a factual-situation that acts on the speculation that the fact subsists; if no contradicting probabilities he finds where the preponderance is in favour of the existence of the particular fact. Important issues like those which affect the status of parties demand closer scrutiny than those like the loan on the promissory note” the nature and gravity of an issue necessarily determine the manner of attaining reasonable satisfaction of the truth of the issue[10].

  1.  The degree of probability depends on the subject matter. In proportion, because the offence is grave, so ought the proof to be clear.”— Lord Denning.
  2. But whether the difficulty is one among cruelty or of a loan on promotion, the test to use is whether or not on a preponderance of probabilities the relevant fact is proved.
  3.  In civil cases, this, normally, is that the standard of proof to use for locating whether the burden of proof is discharged[11].


Even though the standard of beyond reasonable doubt is maintained in a higher position, it is analyzed that the evidence must be able to prove the facts. As long as there is no extent for a prudent mind to doubt the formulation of an event, the version of events remains valid, simply because the standard of the balance of probabilities is considered to be lower than the standard used in criminal trials, it cannot be validly concluded that the seriousness of the matter in civil cases is not given due regard.

Repeatedly the Courts have received views to provide a third standard of proof, which would be somewhere between the criminal standard and the civil one.[12] Even though it seems that this could be the possible solution to peculiar situations, like a criminal allegation within a civil suit. There are still vague areas in the presence of two standards perhaps a third standard is not the best step at present.

It has been held that for criminal cases, the Court must take all the necessary measures to find out all the relevant cite and ensure that justice is delivered. Whereas for civil cases, the parties are required to present their best case before the courts based on which the decision can be delivered in favour of either of the parties. The essence of penalty in criminal cases is also often severer, which is why the same standard is not adopted in civil suits.


[1] Anushka, Burden of Proof, Law Times Journal (06 June 2020, 6:23 PM)

[2] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law Publication, Allahabad

[3] Review of the Indian Evidence Act 1872, Law commission of India Report No. 185, 13 March 2003, pg. 23

[4] Mark Schweizer, The civil standard of proof– what is it, actually?, MAX PLANCK SOCIETY, 04(July 2013)

[5] Criminal or Civil Standard of Proof, Law Teacher, 05 June 2020, 5:38 PM (

[6] Ibid

[7] Dr. Rangin Pallav Tripathy, Standard of Proof in Inquiry against Judges: A Case for a Lower Threshold, 5(2) NLUJ Law Review,85, 112(2018)

[8] Christopher B. Mueller & Laird C. Kirkpartick, Evidence 134 (5th Ed. 2012)

[9] Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane, 1975 AIR 1534

[10] Kusum, Cases and material on Family Law, Universal Law Publishing co. Pvt. Ltd. 15 (2d ed. 2010)

[11] Justice Y. Srinivasa Rao, Appreciation of Evidence in Civil Cases, Articles on Law (06 June 2020, 2:23 PM)

[12] Supra note 5

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