Sunday, August 2, 2015

Mere Syntax?

Why is this Blog called the "proof" of guilt and not the "evidence" of guilt? I was asked this but never paid much attention to the thought. Suddenly it struck me as a rather interesting doubt. When going over the Indian Evidence Act, 1872 to find an answer, I find Section 3 defines "evidence" but not "proof". However, the entire exercise was based on the idea of proving or disproving something, and a specific chapter is labelled "on proof", and we always consider burdens as proof beyond reasonable doubt. But is there any difference between evidence and proof?

Looking at the Evidence Act, it would seem evidence is what the parties lead at trial for the court to consider whether facts stand proved or disproved as explained in Section 3. The Madhya Pradesh High Court has said that "proof is the effect of evidence" [Phoolchand Garg v. Gopaldas Agarwal, AIR 1990 MP 135], but it seems more appropriate to treat proved or disproved as being the effect of evidence. Turn to definitions of proved and disproved, however, and you will see they don't mention evidence. Rather, a court may conclude a fact proved after considering all the matters before it.   

Looking at the description of something as proved doesn't in any case answer our initial question of whether any difference exists between evidence and proof itself. So we turn elsewhere. One interesting answer from the web was that proof was a term for the laws of mathematics. Those, you may recall, are immutable. Evidence belonged to scientific laws: conclusive till the discovery of some fresh evidence to then make a new law. Intuitively attractive, it didn't fit with the Indian Evidence Act. If proof was always conclusive, Section 4 wouldn't have explained the meaning of conclusive proof. Its here that the Supreme Court really made matters worse. In Somavanti v. State of Punjab [(1962) 3 SCR 774] it was asked what is the difference between this "conclusive proof" and the "conclusive evidence" which some statutes contained. A Full Bench of the Court held there was no difference. So is it mere syntax then?

I believe this answer is correct. I turn to the text of the Evidence Act to answer this and raise as an example Section 71 with its headnote: "Proof when attesting witness denies the execution: If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence [emphasis supplied]". The provision explains how documents may be proved when a witness denies execution, and says the proof may be other evidence. Clinches it, right? I think so, but then I remain by this one line in Section 136 of the Act:

"If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking [emphasis supplied]."

In the same sentence, the Act seems to treat the words differently and then identically. Call it bad drafting, or perhaps an insight into something deeper, I leave that to you. For this Blog, all it means is that there is enough reason to treat The Proof of Guilt differently from The Evidence of Guilt. 

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