The rules of evidence are, in general, the same in civil and criminal proceedings. There are, however, some exceptions, as for instance, the doctrine of estoppel applies to civil proceedings only. On the other hand, the provisions relating to confession (Ss. 24-30), character of persons (Ss. 53-54), and incompetence of parties as witnesses (S. 129) are peculiar to criminal proceedings.
But, there is a marked difference as to the effect of evidence in civil and criminal proceedings. In civil proceedings, the proof required is sufficient if there is a mere preponderance of probability; but, in criminal proceedings, it must be such as to exclude, to a moral certainty, every reasonable doubt of the guilt of the accused.
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As far as criminal proceedings are concerned, in the words of the Supreme Court (in Garib Singh v. State of Punjab, (1972) 3 S.C.C. 418), “the prosecution must prove its case beyond all reasonable doubt”. But, in civil cases, even though charges of criminal or fraudulent character are involved, it is wrong to insist on proving charges clearly and beyond reasonable doubt. (Gulabchand v. Kudilal, A.I.R. 1966 S.C. 1734)
The rules of evidence are the same in civil and criminal proceedings, and bind alike the State and the subject, prosecutor and accused, plaintiff and defendant. The Act makes no distinction between the degree of proof or probability required for criminal as distinguished from civil cases.
However, as remarked by Best in his book on Evidence, “There is marked difference as to the effect, i.e., probative force of evidence, in civil and criminal proceedings. In civil cases, mere preponderance of probability is sufficient; whereas, in criminal trials, the persuasion of guilt must amount to such a moral certainty as to convince the mind of the tribunal beyond all reasonable doubts” is based upon the maxim of English law laid down by Holroyd J. that “It is better that ten guilty men should escape, rather than one innocent should suffer”.
The serious consequence of an erroneous condemnation, both to the accused and to the society, the immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every civilised nation to lay down the principle that the persuasion of guilt must amount to a moral certainty.
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The following are the main points of difference between evidence in civil and criminal proceedings:
1. In civil cases, issues may be proved by preponderance of evidence. In criminal cases, issues must be proved beyond any reasonable doubt.
2. Certain rules of evidence are applicable to criminal cases only because the relevant issues arise only in such cases. Examples in this regard are confessions, dying declarations, character of the accused, etc.
3. In civil cases, the rules of evidence may be relaxed by consent of parties or by an order of Court, e.g., proof by affidavit. It is not so in criminal cases.
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4. In civil cases, it is the duty of the parties to place their case before the Court as they think best, whereas in criminal cases, it is the duty of the Court to bring relevant evidence on the record to see that justice is done.
The rules regulating the admissibility of evidence are also, in general, the same in civil as in criminal proceedings. But, with regard to the proof in criminal cases, the following general rules have to be observed:
1. The accused is always presumed to be innocent until the prosecution proves him to be guilty.
2. The evidence must be such as to exclude every reasonable doubt of the guilt of the accused.
3. In case of any reasonable doubt as to the guilt of the accused, the benefit of doubt should always be given to the accused.
4. There must always be clear proof of corpus delicti, i.e., the fact of commission of the crime.
5. The hypothesis of delinquency should be consistent with all the facts proved.
As regards the standard of proof in civil and criminal cases, Denning J. observed in Bater v. B, “It is true that, by our law, there is a higher standard of proof in criminal cases than in civil cases; but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also, in civil cases, there may be degrees of probability.” The general rules in civil actions (except matrimonial causes) is that an uncontested case may be established by a minimum of proof and a contested issue by a balance of probabilities.
Courts have often applied the maxim, “falsus in uno, falsus in omnibus’’ (one falsity leads to the inference of the entire story being false). However, the Supreme Court has observed that the maxim, falsus in uno, falsus in omnibus, is not to be applied mechanically.
It held that the mere fact that the evidence of some witnesses was found unsafe for conviction, is not a ground for rejection of their testimony. (Nadodi v. State of Tamil Nadu, 1993 Cri. L. J. 426) (This maxim is discussed at greater length in the next chapter.)
Demeanour of Witness:
It will be seen that the word “matters” (and not the term evidence) is used in the definitions of the terms “proved” and “disproved”. It is because of the use of this wider term that a Court can attach due weight to the demeanour of a witness, i.e., the manner in which he gives evidence in the Court.
This is based on the psychological proposition that, by carefully watching a person tell a story, one may instinctively be able to tell whether he is lying or not. One is reminded of Locke who, in his “Essay Concerning Human Understanding”, gives the example of the Dutch Ambassador at the Court of the King of Siam.
The Ambassador told the King that in his country during winter, the water would become so hard that men — and even elephants — could walk on it. On hearing this, the King is said to have instantaneously remarked, “Hitherto I believed the strange things you told me, because I looked upon you as a sober, fair man; but now, I am sure that you are a liar.”