The dilemma of the forgotten prudent man

October 24, 2014 - admin

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Published by Advocate John S.Ralph

Two grand authorities on the subject of proof in Evidence Act have rendered two sets of thoughts ; one in Jose Vs State of Kerala ( 2010 (2) KLT163 by his Lordship Justice R.Basant and the other in reply to that by his Lordship Justice U.L Bhat published in 2010 (3) KLT journal 1. The clash of the titans gave immense academic pleasure for its readers. This is to explain a different approach on the subject. And not to contradict or differ with those jurists.

For a quick reading let me reproduce Section 3 of the Evidence Act

Proved : A fact is said to be proved when, after considering the matters before it, the court either 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.

(The other 2 limbs ‘not proved’ and ‘disproved’ are omitted since not required for the present discussion)


Thus Section 3 has two limbs. (1) the court believes it to exist (2) probability of the acts of a prudent man under a particular circumstance.

The crux of the judgment in Jose Vs State of Kerala was that the second limb of the section is meant for the jury and the first limb is for the trained judicial mind. Hence the two limbs are mutually exclusive. The reply article tries to establish the contrary and argues that both the limbs are to mutually exist.

My humble endeavor is to advance a different theory for the inclusion of the second limb of Section 3 since both the aforesaid theories explained by the echelons of law will at times conflict each other and hence they both could not fit in all the circumstances. Let us consider some of them.

Belief of the trained judicial mind conflicts with the evidence: There may arise situations in which the belief of the trained judicial mind conflicts with the proved facts. Take for example a case of defamation on a popular public figure as the victim. The prosecution / plaintiff as the case may be has to prove that the person defamed has got certain fame / reputation. But the judge knows from his personal experience ( since the defamed man is a popular figure) that the person defamed is a dishonest man. Evidence is adduced through witnesses. What they speak about the fame is what they think about that particular man. The cross examination was unsuccessful. Now there is a set of evidence tendered through witnesses, unbroken in cross examination. But the judge does not BELIEVE it to be true since he knew that the defamed man is dishonest and has no fame or reputation. Here the belief of the judge is in direct conflict with the evidence before him. Now the judge cannot render his judgment against the set of evidence before him, by saying that he did not believe them to be true. Then the question arises “can the judge consider the matter as proved even though he does not believe it to be proved?” If he does so he will be rendering a judgment against his conscience. Then comes the essentially consequential query. Can a judge render a judgment against his conscience ? The answer will be a difficult one. There may be thousand of like situations wherein the judicial mind conflicts with the evidence adduced. Hence the argument that both the limbs are mutually exclusive is doubtful.

Are the limbs mutually co existing ?   If both the limbs are co existing, the need for the second limb vanishes. Why because (1) the trained judicial mind can certainly gather what the untrained lay prudent man of the jury thinks on that certain set of facts. (2) If the trained judicial mind can not accept a thing as proved, it should not, need not and cannot go down to a lower level of intellect as of the lay prudent man jury for ascertaining what a lesser intellect thinks fit (3) if both the limbs are co existing, the judge goes to the second limb since he does not believe himself that the fact is proved. But later on he cannot accept a different belief from the jury since it will be in direct conflict with his own belief.

These apart the law at the time of jury trial was that, when there is a conflict between the jury and the judge regarding a question of fact, the decision of the jury should prevail. (See Ramanugrah Sing Vs Emperor 1946 PC 151)


And it is also not correct to assume that the jury was consisting of lay prudent men, at least in 1872 when the Evidence Act came into force. There may be cases of imprudent jury men like that of Nanavati’s case ( AIR 1961 SC 112) which resulted in abolishment of jury system in India. But at the inception of the jury system, persons of high positions in the society were forming the jury. The Evidence Act came in 1872 and it was codifying the practice and precedents of centuries of legal wisdom. The earliest jury men were appointed by the crown to assess the tax of the land possessed by the citizens. And those were persons of highest integrity and reputation in the society. And nowhere in the British legal history we get information for the proposition that the jury consisted of lay prudent men. Bear in mind that we are in 1872, the year in which section 3 came into the statute book.

Now let us view the second limb of Section 3 in a totally novel way, tearing it from the first limb.        Both the masterminded authors mentioned above have not considered the question   “who is a prudent man ? ” Prudent man is not a lay man or a jury man or a reasonable man.

Who is a prudent man ? The Prudent man rule came in the year 1830 in a Massachusetts court decision in Harvard College v. Armory 9 Pick (26 Mass) 446, 461 (1830) The rule directs trustees “to observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested”. And the said rule, obviously came into existence after decades of legal battles on the subject in many suits. This has been made a specific law in many countries including America under The Employee Retirement Income Security Act 1974

An Example on how the rule applies :

The plaintiff entrusted money with the defendant who is an investment expert. He invested the same in land in Kochi at a time when X party was in power and the land value was increasing. Due to certain political turmoil, the govt. was forced to resign and in the ensued election, the Y party came into power. Due to their policies, the land value decreased. The plaintiff sues the defendant for the loss he sustained in the investment. The defendant takes up the plea of PRUDENT MAN RULE and content that he had done only what the prudent men had done in that particular circumstances.

Here, the loss suffered by the plaintiff was due to the attitude of the millions of voters / electorate that changed the government. Ultimately what affected the investment was the mental attitude of each and every voter, a fact which could not have been foreseen before the election result comes. Hence the plaintiff cannot prove or ascertain that the loss of the govt. and the consequences were certain and that the defendant should not have invested in land. The defendant also could not prove that the change of the government was unlikely since the society was improving which is indicated by the increase in the land value and it was thus he invested in land.

Hence there will not be any positive cogent evidence on matters before the court for it to enter into a belief which of the plea of the parties is correct.

In such situations, the court should go to the second limb and ascertain what the Prudent Men had done in that given period. ( Whether the investment was speculative or not, or whether the investment was advised by the financial experts and magazines etc. ) Thus resolves the rival contentions.   It is for that purpose the second limb exists.

Deconstructing the section


(Deconstruction is a method in western philosophy that rigorously pursues the meaning of a text to the point of exposing the contradictions and internal oppositions upon which it is apparently founded and showing that those foundations are irreducibly complex, unstable, or impossible. It was founded by the French philosopher Jacques Derrida(1930-2004) and effectively used by critics like Roland Barthes(1915-80)

The present argument can also be explained by deconstructing the second limb into parts as follows :

…..existence so (1) PROBABLE ( court is considering only the probability and not a certainty) that a

(2) PRUDENT MAN ( the prudent man in the prudent man rule ) ought

(3) UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE, ( the word “case” according to oxford means ‘an instance of a particular situation, the situation affecting or relating to a particular person or thing etc’ )

(4) TO ACT UPON (here the court is considering the ACT of the PRUDENT MAN and not his belief)

(5) THE SUPPOSITION THAT IT EXISTS. (that certain situation was existing)

Now let us add these five segments and we get the following conclusion that is to be arrived by the court after considering matters before it.

that the prudent man was, under those circumstances, acting upon the supposition that those situations were existing  

This proposition gets support from the set of words TO ACT UPON. Let us again deconstruct these set of words.

Who is acting ? and To act upon what ?

The prudent man in the prudent man rule was ACTING and he was acting under a certain situation. And his ACT was so probable.

Had this been not the intention of the second limb, it would have been constructed as follows : “ OR CONSIDERS ITS EXISTENCE SO PROBABLE THAT A PRUDENT MAN WILL BELIEVE IT TO EXISTS “  So it is not the belief of the lay prudent man jury but the PROBABILITY OF THE ACT OF A PRUDENT MAN UNDER A CERTAIN SITUATION is being considered / evaluated by the court to arrive at a conclusion whether the claim of the party that what he had done was only a thing that the prudent men had done at that given situation.

The theory that the second limb applies to the standard of proof in civil cases is also doubtful. Especially when after considering the matters before it, the court has to arrive at his own BELIEF as stated in the first limb. And nowhere it is stated with what strictness the criminal cases are to be proved. “Reasonable doubt” and “Preponderance of probability” are the brain children of Trained Judicial Wisdom.

The hypothesis that the standard of proof in criminal and civil law are different and in the former, the facts are to be proved beyond reasonable doubt and in the later it need only to be proved through preponderance of probability has a historical reason. In criminal law, the defendant / accused is under the protection of a golden presumption that he is innocent until the guilt is proved. This is evolved from the basic concept of righteousness of the individual in a given society that assumes that every citizen is good. So in a criminal case , the prosecution has to rebut that presumption by strict proof. In civil cases such a presumption is absent and the court can consider which argument is more probable.

So in my humble opinion, the second limb of Section 3 of the Evidence Act is incorporated for a different purpose based on the Prudent Man Rule 1836.

                                                                                                                     Adv. John.S.Ralph